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TRANSCRIPT
,y FILED ~e 27,2014 Court of Appeals
Division I State of Washington
No. C\()~ \...\ \-'2:, (Court of Appeals No. 69401-4-I)
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CITY OF KENT,
Respondent
V.
EVERARDO BECERRA-AREVALO,
Petitioner
ANSWER TO PETITION FOR REVIEW
{F ~UL~1 ~ lD) CLERK OF THE SUPREME COURT \Z STATEOFWASHINGTON~~
TAMMY L. WHITE WSBA#43595
CITY OF KENT Attorneys for Respondent
220 Fourth Ave. S. Kent, W A 98032
(253) 856-5770
TABLE OF CONTENTS
I. RELIEF REQUESTED ................................................................... 1
II. STATEMENT OF THE CASE ....................................................... 1
III. ARGUMENT WHY REVIEW SHOULD BE DENIED ................ 6
A. Mr. Becerra-Arevalo's Petition for Review on Basis of Ineffective Assistance of Counsel is Time-Baned ................... 6
B. The RALJ Comt did not Include Ineffective Assistance of Trial Counsel as a Basis for its Decision, and the Court of Appeals Co1Tectly Decided the Issue ...................................................... 8
C. Effective Assistance of Counsel was Provided to Mr. BecerraArevalo By Both Trial Counsel and RALJ Appellate Counsel. ................................................................................................. 12
D. Remand To RALJ Was Procedural, Would Have Occurred Absent Petition for Review, And Petition for Review on That Basis Was Premature And Unnecessary ................................. 18
IV. CONCLUSION ............................................................................. 20
TABLE OF AUTHORITIES
State Cases
Burrell v. State, 137 Wn.2d 918, 976 P.2d 113 (1999) ............................... 8
Geissler Estate, 110 Wash. 14, 187 P. 711 (1980) ................................... 19
In ReMarriage o{Rockll'ell, 157 Wn. App. 449,238 P.3d 1184 (2010). 19
In re Pers. Restraint o[Lord, 123 Wn.2d 296,868 P.2d 835 (1994) ....... 14
In re Pers. Restraint o{Tortorelli, 149 Wn.2d 82, 66 P.3d 606 (2003) .... 11
Lang v. Hougan, 136 Wn. App. 708, 150 P.3d 622 (2007) ........................ 9
Schmechel v. Ron Mitchell C01p., 67 Wn.2d 194, 406 P .2d 962 (1965) .... 9
State v. Adams, 91 Wn.2d 86, 586 P.2d 1168 (1978) ............................... 13
State v. Breitung, 173 Wn.2d 393, 267 P.3d 1012 (2011) ........................ 13
State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2006) ............................. 13
State v. Grier, 171 Wn.2d 17,246 P.3d 1260 (2011) ............................... 13
State v. Hendrickson, 129 Wn.2d 61, 917 P.2d 563 (1996) ...................... 13
State v. Madison, 53 Wn. App. 754, 770 P.2d 662 (1989) ....................... 14
State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995) .............. 12, 13
State v. ~McNeal, 145 Wn.2d 352, 37 P.3d 280 (2002) ............................. 13
State v. Powell, 166 Wn.2d 73,206 P.3d 321 (2009) ............................... 11
State v. Reep, 161 Wn.2d 808, 167 P.3d 1156 (2007) .............................. 18
State v. Schwab, 134 Wn. App. 635, 141 P.3d 658 (2006) ....................... 19
. i
Federal Cases
Kimmelman v. Morrison, 477 U.S. 365, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986) ......................................................................... 14
Stricklandv. Washington. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ....................................................................... 12
Rules
RALJ 10.3 ............................................................................................... 6, 7
RALJ 2.5 ..................................................................................................... 6
RALJ 2.5(a) ................................................................................................. 7
RAP 12.2 ................................................................................................... 18
RAP 12.4 ..................................................................................................... 8
RAP 13.4(b) .......................................................................................... 1, 20
RAP 13.4(b)(3) ......................................................................................... 18
RAP 13.5(a) ................................................................................................ 8
RAP 18.8 ................................................................................................. 6, 7
RAP 5.2 ....................................................................................................... 6
RAP 5.2(b) .................................................................................................. 7
Appendices
AppendixA ................................................................. l,5,6, 11, 12, 18,19
Appendix B ............................................................................. 5, 6, 9, 11, 12
Appendix C ................................................................................................. 5
Appendix D ................................................................................... 5, 6, 8, 18
ii
Appendix E ............................................................................................. 7, 8
Appendix F ................................................................ 8, 9, 10, 11, 12, 14, 15
Appendix G ............................................................................................... 19
iii
I. RELIEF REQUESTED.
The unpublished appellate decision of which the Petitioner, Mr.
Everardo Becerra-Arevalo, seeks review is in accord with existing case
law, and frankly, unremarkable. The Washington Comi of Appeals,
Division I, correctly decided that no prosecutorial misconduct occurred,
that Mr. Becena-Arevalo's trial counsel opened the door to the
questioning of which he took issue with in his appeal, that the prosecutor's
redirect of the officer was in direct and petiinent response to defense
counsel's cross examination, that defense counsel caused any potential
prejudice, and regardless, that any resulting prejudice was neutralized by
the given jury instmctions. Appendix A at pgs. 7-8, 10-12. Having lost
before the Comt of Appeals, Mr. Becerra-Arevalo has recrafted his
argument and alleges, for the first time, that ineffective assistance of trial
counsel was a basis of the RALJ comt's decision to ove1iurn his
conviction. Petition for Review at 9-11. His arguments are without merit,
and he has failed to demonstrate that the issues in this case conflict with
existing law, or are sufficiently concerning enough to wan·ant review
under RAP 13.4(b). His Petition for Review should therefore be denied.
II. STATEMENT OF THE CASE.
In December 2011, after a two-day jury trial, Mr. Everardo
Becel1'a-Arevalo was convicted in the Kent Municipal Court of Assault in
the 4th Degree with Sexual Motivation. CP 56, 353. At trial, the victim,
Kelly Fitzpatrick, testified that on October 27, 2009, Mr. BeceiTa-Arevalo
came up behind her, reached underneath her, and put both his hands on her
breasts. CP 75-76. He then bent down and tried to kiss her, but she turned
her head and he kissed her cheek. CP 76, 81. When efforts to repmt the
assault to her supervisor failed to bring about responsive action, Ms.
Fitzpatrick repmted the assault to police. CP 82-84.
During trial, former Kent Police Officer Carrie Nastanskyl testified
on direct that her conversation with Mr. BeceiTa-Arevalo about Ms.
Fitzpatrick's allegations "was kind of odd because it was-1 don't want to
say he was trying to hide something. He was very careful about what he
said and how he answered the questions." CP 110. Officer Nastansky
fulther described what it was about Mr. Becerra-Arevalo that led her to
believe he was being careful-" he was slow to answer as if he were trying
to come up with a story in his head versus just if something had happened
you would be able to freely tell the story and you wouldn't have to think
about it .... " CP 111.
1 At the time of trial, the office1· was employed as a Deputy with the Thurston County Sheriff's Office. CP 103-104.
2
On cross, Mr. Becen:a-Arevalo's counsel asked Officer Nastansky
if Mr. Becerra-Arevalo was only "guarded"2 with respect to questions
about his relationships with women at work. CP 117. On re-direct, the
prosecutor asked Officer Nastansky if Mr. Becerra-Arevalo was guarded
in other respects, to which Officer Nastansky stated:
Yes he was. And he lied to me also. He told me he didn't know why I was there, although he had already been contacted by the prope1ty manager, so you would assume he would know why I was there.
CP 119-120. No objection was· made, and the prosecutor immediately
moved on. CP 119-120.
On re-cross, however, Mr. Becerra-Arevalo's counsel questioned
Officer Nastansky extensively concerning Mr. Becen-a-Arevalo's apparent
"lie" to her.3 Through leading questions to Officer Nastansky, Mr.
Becerra-Arevalo's counsel drew the conclusions that "just the people that
2 A term the officer had not previously used.
-3 Q: You said he lied to you? That's a pretty bold statement by an officer,
wouldn't you agree? (CP 122, line 1-2) Q: And you said that the reason you thought it was a lie was because this other
person had talked to him previously? (CP 122, line 8-9) Q: You go from the perspective that someone's guilty of a crime. What about
somebody that doesn't think they've committed a crime? (CP 122, line 21-22)
Q: You classifY this as a lie. You specifically said it was a lie. (CP 124, line 14) Q: So what about that statement is a lie? (CP 124, line 16). Q: I'm asking about that statement specifically, not your interactions. (CP 124,
line 18) Q: If you were accused of a crime-most people that you deal with, when you
accuse them of a crime, are they guarded? (CP 125, line 9-1 0) Q: So you're saying just the people that are guilty are guarded? (CP 125, line
12) Q: And that's the statement that you're saying is a lie? (CP 126, line 10)
3
are guilty are guarded," "people that are guarded are guilty," "and people
that are not guilty but accused of a crime are not guarded." CP 125, line
12; CP 131, lines 17-21. In the City's second re-direct, and based on Ml·.
Becena-Arevalo significantly opening the door, the prosecutor asked
Officer Nastansky the basis for her opinion that was elicited by defense
counsel. CP 128, line 8.
In their instructions, the jurors were provided with WPIC 1.02,
which provided that the jmy was the sole judge of the credibility of each
witness. CP 8. During closing, the prosecutor referred to this instruction
multiple times and the guidance it provided that the jury, and they alone,
were the sole judges of each witness's credibility. CP 320, 321, 325. The
prosecutor discussed with the jury those things included in their
instructions that they may consider when assessing credibility, including a
witness's demeanor while testifying. CP 325-326. In closing, the
prosecutor asked the jury to ask themselves if they believed, based on Ms.
Fitzpatrick's demeanor when she testified, that she was making up the
allegations, and to consider what motive, bias, or prejudice Ms.
Fitzpatrick would have to fabricate her claims. CP 326-327.
Mr. Becena-Arevalo timely appealed his conviction alleging: (1)
prosecutorial misconduct based on: improper opinion testimony, improper
cross-examination and impeachment, improper comment on his
4
constitutional right to confront witnesses; (2) admission of improper
opinion evidence; and (3) admission of evidence on rebuttal that did not
rebut any new evidence presented by the defense. CP 1, 30-54. The
RALJ court overtumed Mr. Becerra-Arevalo's conviction on the basis of
his first claim for appeal (prosecutorial misconduct) and remanded the
case for retrial. Appendix B and CP 459-460. Having made that decision,
the RALJ court never reached his second4 and third5 claims. CP 30-31,
49, 50; Appendix B; CP 459-460.
The City timely moved for discretionary review before the Court
of Appeals. Appendix C. After granting discretionary review, the Court
of Appeals overturned the RALJ court, and reinstated Mr. Becerra-
Arevalo's conviction. Appendix D, Appendix A. The Court of Appeals
held that the prosecutor did not commit misconduct because the officer's
testimony elicited on direct regarding the defendant being "careful" was
not a direct comment on Mr. Becerra-Arevalo's guilt, was based on the
officer's observations, and because the officer's later opinion testimony
was first elicited by defense counsel on cross, the prosecutor's redirect
was invited by the defense and not improper given the sequence of
testimony. Appendix A at 4-8. Additionally, the Com1 of Appeals held
that no prosecutorial misconduct occurred during closing argument as the
4 Claim for improper opinion testimony. CP at 49-50. s Claim for trial court's abuse of discretion in allowing City's rebuttal case. CP at 50-53.
5
prosecutor's isolated comment, when viewed in the context of her entire
closing argument, was not a comment on Mr. Becerra-Arevalo's
constitutional right to confront the witnesses against him, but pertained to
the jury's consideration of Ms. Fitzpatrick's demeanor in assessing her
motive and credibility. Appendix A at 8-9. Further, even if the Comt of
Appeals assumed the prosecutor's comments were improper, it held Mr.
Becen·a-Arevalo could not demonstrate that prejudice occurred given
defense counsel's tactics and the testimony of others, apart fi·om the
officer, who undermined and impeached Mr. Becena-Arevalo's courtroom
testimony. Appendix A at 10-12. Although the Comt of Appeals accepted
review of Mr. Becerra-Arevalo's claim of improper opinion testimony, it
declined to decide that issue, having reversed the RALJ court on the
prosecutorial misconduct issue. Appendix D at 8, Appendix A at 13,
Appendix B.
III. ARGUMENT WHY REVIEW SHOULD BE DENIED
A. Mr. Becerra-Arevalo's Petition for Review on Basis of Ineffective Assistance of Counsel is Time-Barnd.
While an ineffective assistance of counsel claim may be raised for
the first time on appeal, that claim must still be filed within the appeal
deadlines set by RALJ 2.5 and RAP 5.2. No extraordinary circumstance
existed in accordance with RALJ 10.3 or RAP 18.8, and no extension was
6
sought before either the RALJ court or the Court of Appeals as required
by those rules to preserve the claim.
An appeal from a Comt of Limited Jurisdiction must be filed
within 30 days after entty of a final decision. RALJ 2.5(a). Here, the Kent
Municipal Court entered its judgment on Febmary 13, 2011, and the
appeal period ran on March 15, 2011, over three vem·s ago. No Notice of
Appeal alleging ineffective assistance of counsel was filed with the RALJ
court, and no extension was sought under RALJ 10.3. CP 1-466. A
discretionary appeal from the RALJ court must be filed within 30 days
after the act the party wants reviewed. RAP 5.2(b). In this case, the RALJ
Decision was entered on September 7, 2012, and the appeal period ran on
October 7, 2012, neaJ'/v two years llgo. No Notice of Appeal or Notice of
Discretionary Review alleging ineffective assistance of RALJ appellate
counsel was filed with the Com1 of Appeals, and no extension was sought
under RAP 18.8. CP 1-466.
Mr. Becerra-Arevalo first attempted to raise his ineffective
assistance of counsel claim, for both his trial and RALJ appellate counsel,
before the Court of Appeals in his Answer to the City of Kent's Motion
for Discretionary Review, filed on February 1, 2013, long after the appeal
period ran for both those claims. Appendix Eat 15-19. The Comt of
Appeals properly denied Mr. BecetTa-Arevalo's ineffective assistance of
7
counsel claims on May 6, 2013, holding that those claims were untimely,
were not raised before the RALJ comt, and would not be considered for
the first time on discretionary review from the RALJ appeal. Appendix D
at 3, footnote 1. No Motion for Reconsideration was filed before the
Comt of Appeals under RAP 12.4, and no interlocutory review was sought
under RAP 13.5(a). This claim is untimely, and review should be denied.
B. The RALJ Court did not Include Ineffective Assistance of Trial Counsel as a Basis for its Decision, and the Court of Appeals Correctly Decided the Issue.
There is no evidence the Court of Appeals misunderstood or
incorrectly interpreted the RALJ court's Order on RALJ Appeal as argued
by Mr. BecelTa-Arevalo. Petition for Review at 9-11. Having failed
before the Comt of Appeals, Mr. Becerra-Arevalo now re-crafts his
ineffective assistance of counsel argument and claims, for the fust time in
his Petition for Review, that ineffective assistance of counsel was a basis
upon which the RALJ comt reversed his conviction. Jd. This position
was never assetted in either of the lower appellate comts. Appendix E,
Appendix F. This claim is without merit, without suppott in the record,
and should be stricken.6
Here, Mr. Becerra-Arevalo claims that the RALJ comt's statement
in its "Order on RALJ Appeal" that it:
6 Portions of a briefthat contain factual material not submitted to or considered by the trial court should be stricken. Burrell v. State, 137 Wn.2d 918, 932, 976 P.2d 113 (1999).
8
DOES HEREBY HOLD AS FOLLOWS: the lower comt erred for the following reasons: the cumulative effect of the combination of the police officer's comment on the credibility of the defendant and the emphasis by both counsel on lying during the officer's testimony with the comment on the defendant's presence during the witness's testimony when he had a constitutional right to be there require reversal and remand for retrial. ...
means that the RALJ court necessarily considered that Mr. Becerra-
Arevalo's tr·ial counsel was ineffective. Petition for Review at 10. An
ineffective assistance of counsel claim was not raised by Mr. Becerra-
Arevalo in his Notice of Appeal to the RALJ comt, dated December 30,
2011; or in his Brief before the RALJ court, dated June 25, 2012. CP 1,
30-54. Nor was this position argued before the RALJ comt, or included in
the RALJ's court's oral decision on September 7, 2012. Appendix F.
While an oral decision may not be used to contradict an unambiguous
Wiitten finding, it may be consulted to determine a court's basis for a
conclusion of law if the written order does not provide an explanation.
See, Schmechel v. Ron Mitchell Cmp., 67 Wn.2d 194, 197, 406 P.2d 962
(1965), and Lang v. Haugan, 136 Wn. App. 708, 716, 150 P.3d 622
(2007). Here, Mr. Becerra-Arevalo argues a position that is not expressly
apparent on the RALJ comt' s written order. Appendix B, Petition for
Review at 9-11. When the transcript of the RALJ hearing is consulted, it
is clear that no reference is made to any ineffective assistance of counsel
9
claim-by either party or by the RALJ court. Appendix F. In fact, Mr.
Becerra-Arevalo's appellate counsel, Ms. Andrea Beall7, commented
several times that the substantial cross examination by defense counsel of
the police officer concerning Mr. BecetTa-Arevalo's "lie" was a deliberate
trial tactic made jn an effm1 to discredit the officer. Appendix F at 7, 8,
28. There is no basis in the record to support Mr. Becerra-Arevalo's claim
that his ineffective assistance of counsel claim was timely raised before
the RALJ court or the Court of Appeals, or was a basis for the RALJ
court's decision. As such, review should be denied.
The Cout1 of Appeals also correctly decided the issues before it
and reversal was warranted under the law. In its oral decision, the RALJ
com1 expressed that no individual allegation raised by Mr. Becerra-
Arevalo would have warranted reversal and remand. However, the RALJ
court expressed that the combination of issues alleged under Mr. Becerra-
Arevalo's first claim of appeal for prosecutorial misconduct-including
the prosecutor's question to the officer about the "lie," regardless of the
questions asked by defense counsel; the officer's answers in response to
the prosecutor's questions; and the prosecutor's comment in closing
argument about the victim's demeanor while testifying and Mr. Becerra-
Arevalo's presence-combined to watTant reversal and remand.
7 Ms. Beall was formerly a member of Stewart, MacNichols & Harmell. However, she left that finn to serve as Presiding Judge for the Puyallup Municipal Court.
10
Appendix F at 30-33, Appendix B. Because the RALJ court never reached
Mr. Becena-Arevalo's second and third claims for appeal, the sole basis
upon which the RALJ comi reversed the conviction was on what it
believed was the cumulative effect of alleged prosecutorial misconduct.
Appendix B at 2. Due to the Court of Appeals finding no prosecutorial
misconduct, and that defense counsel opened the door to the officer's
opinion testimony, there was nothing that remained intact of the RALJ
court's decision to support reversal. Appendix A at 4-5, 7~8, 10-12.
Having so found, it was unnecessary for the Court of Appeals to consider
Mr. BecelTa-Arevalo's second claim of appeal for improper opinion
testimony, of which it had accepted review for judicial efficiency. In
short, once the Court of Appeals found that Mr. Becerra-Arevalo's trial
counsel opened the door to the officer's opinion testimony, and that the
prosecutor's redirect of the officer, and the officer's responses to those
questions, were in direct and pertinent response to defense counsel's
questioning, Mr. Bece1n-Arevalo 's remaining claim for improper opinion
testimony became a nullity, evaporated as invited error, and it became
unnecessary for the Court of Appeals to decide that issue. Appendix A at
5, 7, 8, 10-12; See e.g., State v. Powell, 166 Wn.2d 73, 81, 206 P.3d 321
(2009), In re Pers. Resh·aint o[Tortorelli, 149 Wn.2d 82, 94, 66 P.3d 606
(2003). On remand, the RALJ cou11 would be bound by the
11
dete1minations made by the Comt of Appeals in its written decision, and
the law of the case established by that decision would guide the RALJ
court's resolution of any remaining issues.
C. Effective Assistance of Counsel was Provided to Mr. Becerra~Arevalo By Both Trial Counsel and RALJ Appellate Counsel.
Should any weight be given to Mr. Becerra~.Al."evalo's ineffective
assistance of counsel claim, the record reflects that Mr. Becerra-Arevalo's
claim fails as he received effective assistance of both trial and RALJ
appellate counsel. In fact, Mr. Becen·a~Arevalo's RALJ appellate counsel
was successful before that court and convinced it to overturn his
conviction. Appendices B and F. However, because the RALJ court
failed to apply the proper legal standard, though it was cited by both
counsel, the Court of Appeals ove1tmned the RALJ comt's decision.
Appendix A. That result was not attributable to any RALJ counsel
deficiency.
Where an ineffective assistance of counsel claim is brought on direct
appeal, the reviewing comt will not consider matters outside the trial
record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Washington follows the Strickland'J standard to determine whether a
defendant had constitutionally sufficient representation. State v. Breitlmg,
s Stricklandv. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
12
173 Wn.2d 393,397,267 P.3d 1012 (2011). A defendant bears the burden
of establishing ineffective assistance of counsel by showing both deficient
performance and resulting prejudice. State v. Brockob. 159 Wn.2d 311,
344-345, 150 P.3d 59 (2006). Performance is deficient if, after
considering all the circumstances, it falls below an objective standard of
reasonableness. McFarland, 127 Wn.2d at 334-335. Prejudice results if
the outcome of the trial would have been different had defense counsel not
rendered deficient performance. McFarland, 127 Wn.2d at 337. If the
defendant fails to prove either prong, the inquiry ends and the comi need
not consider the other prong. State v. Hendrickson, 129 Wn.2d 61, 78,
917 P .2d 563 (1996). The court will strongly pres·ume that counsel was
effective, and to rebut this presumption, the defendant bears the heavy
burden of "establishing the absence of any 'conceivable legitimate tactic
explaining counsel's performance." State v. Grier, 171 Wn.2d 17, 42, 246
P.3d 1260 (2011).
If trial counsel's conduct can be characterized as legitimate trial
strategy or tactics, it cannot serve as a basis for a claim that the defendant
received ineffective assistance of counsel. State v. Adams, 91 Wn.2d 86,
90, 586 P.2d 1168 (1978). State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d
280 (2002). The decision of when or whether to object is a classic
example of trial tactics. State v. Madison, 53 Wn. App. 754, 763, 770
13
P.2d 662 (1989). Similarly, the failure to raise all possible nonfrivolous
issues on appeal is not ineffective assistance. In re Pers. Restraint of
Lord, 123 Wn.2d 296,313-314,868 P.2d 835 (1994). Rather, the exercise
of independent judgment in deciding which issues may be the basis of a
successful appeal is at the heart of the attomey's role in our legal process.
Id. To prevail on any appellate ineffectiveness claim, Mr. Becerra
Arevalo must show the merit of the underlying legal issues his appellate
counsel failed to raise or raised improperly and then demonstrate actual
prejudice-he can do neither. See, !d., citing Kimmelman v. Morrison,
477 U.S. 365, 375, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986).
First, Mr. Becerra-Arevalo cannot show that either his trial counsel or
his RALJ appellate counsel provided deficient performance. Here, when
the officer blurted "and he lied to me also," Mr. BecetTa-Arevalo's trial
counsel made a tactical and strategic decision to attempt to discredit and
impeach the officer on cross, instead of moving to strike or pursuing other
available remedies. CP 120, 121-126. There are several legitimate trial
strategies that explain why defense counsel chose this route-he may not
have wanted to emphasize the testimony with an objection, or he may
have thought it more persuasive to discredit the officer in front of the jury.
See CP 121-126, Appendix F at 7, 8, 28. When the trial transcript is
reviewed, it is clear Mr. Becerra-Arevalo's trial counsel attempted to
14
discredit the officer by alleging she had a preconceived opinion that all
suspects accused of crime are guilty. See CP 120-126. However, as his
RALJ appellate counsel confirmed, this strategy did not have the desired
result with the jury. Appendix F at 7, 8, 28. Mr. Becena-Arevalo's trial
counsel could have objected to the blurted statement, as he had
competently done throughout the trial. Mr. Becena-Arevalo's trial
counsel had objected at least 21 times during the prosecutor's case in
chief, her cross examination of Mr. Becerra-Arevalo, her rebuttal case, and
her closing argument. CP 98-350. Mr. Becerra-Arevalo's trial counsel
also successfully argued at length against the prosecutor reopening her
case in chief. CP 139-162. This conduct, as evidenced in the trial record,
does not demonstrate deficient representation by trial counsel. To the
contrary, trial counsel's failure to object, when he had previously done so
successfully multiple times, futther evidences that a strategic decision was
made to seek impeachment in lieu of an objection. However, Mr. Becerra
Arevalo cannot now use that failed strategy as a basis for appeal. It is
clear that Mr. Becerra-Arevalo's RALJ appellate counsel recognized the
trial strategy and tactics evidenced in the record, and for that reason, did
not pursue an ineffective assistance of counsel claim. Appendix Fat 7, 8,
28. While Mr. Becena-Arevalo's cunent appellate counsel may have
pursued that claim, she cannot demonstrate by the existing record that
15
there is any merit to her claim that deficient representation occurred to
warrant review of the untimely claim.
Second, Mr. Becerra-Arevalo cannot demonstrate that the jury's
decision would have been different but for any deficiency in
representation. Here, the evidence simply supports that the jury believed
the. victim, Ms. Fitzpatrick, her testimony, and her version of the events.
Her courtroom testimony was consistent with previous statements she
made, and .her demeanor while testifying, even from the defense's
standpoint, made her appear believable. CP 76, 107, 212-213, 261, 266,
341. While Mr. Bece11·a-Arevalo also testified, his courtroom testimony
was inconsistent with prior statements and admissions he made. Mr.
Becen·a-Arevalo testified on direct that he was not aware of Ms.
Fitzpatrick's assault allegations until Officer Nastansky's November 12,
2009, visit. CP 171-172. He also denied multiple times ever talking to his
boss, Ms. Hutchens, about Ms. Fitzpatrick's allegations prior to November
12, 2009. CP 172-173, 185-187. However, Ms. Hutchens testified on
rebuttal that she met with Mr. Becena-Arevalo 10 days prior to Officer
Nastanksy's visit, on November 2, 2009, and informed him of Ms.
Fitzpatrick's allegations. CP 256, 258, 261-262. In his testimony, Mr.
BeceiTa-Arevalo also denied adamantly that he was on the property on the
day of the assault. CP 170-171, 183. However, this testimony was also
16
contradicted by Ms. Hutchens who produced time card records, completed
by Mr. Becell'a-Arevalo in his own handwriting, that evidenced he was on
the property on the day of the assault and near the time that Ms.
Fitzpatrick testified it occurred. CP 226-267, 274-276. Ms. Hutchens also
testified that Mr. Becerra-Arevalo admitted to her that he had been on the
propetty on the day of the assault to inspect the meter in Ms. Fitzpatrick's
officer, but that Ms. Fitzpatrick was not there. CP 266-267. On cross, Mr.
Becerra-Arevalo denied ever touching or kissing Ms. Fitzpatrick, on any
occasion, though that too was contradicted by an admission he made to
Ms. Hutchens on November 12, 2009. CP 187, 188, 272-273. Because
there was significant testimony to suppmt the jury's verdict and its likely
disbelief of Mr. Becerra-Arevalo given his statements that directly
contradicted admitted evidence, Mr. Becerra-Arevalo cannot demonstrate
that the result of the trial would have been different but for any alleged
deficient performance by his trial counsel.
Finally, because Mr. Becerra-Arevalo's RALJ appellate counsel was
successful at that level of appeal, and because the trial record evidences
tactical and strategic reasons for trial counsel not objecting to certain
testimony or proceeding to ask certain questions that inquire into
otherwise inadmissible evidence, he similarly cannot show that his RALJ
appellate counsel provided ineffective assistance by not raising an
17
ineffective assistance of trial counsel claim before the RALJ court. For all
of the foregoing reasons, Mr. Becen·a-Arevalo's Petition for Review
should be denied as it fails, based on the record, to identify an issue
wan·anting review under RAP 13.4(b)(3).
D. Remand To RALJ Was Procedural, Would Have Occurred Absent Petition for Review, And Petition for Review on That Basis Was Premature And Unnecessary.
Under RAP 12.2, an appellate court may reverse, affirm, or modify
the decision being reviewed and take any other action as the merits of the
case and the interest of justice may require. RAP 12.2. When one issue is
dispositive of a case on appeal, the appellate court may decline to consider
other issues before it. See State v. Reep, 161 Wn.2d 808, 813, 167 P.3d
1156 (2007). Here, altho-ugh the Court of Appeals accepted review oftwo
issues: prosecutorial misconduct and improper opinion testimony, it
resolved the appeal by deciding the RALJ coutt erred in ove1tmning Mr.
Becerra-Arevalo's conviction because he failed to cany the burden to
prove his prosecutorial misconduct claim. Appendix D at 8, Appendix A
at 13.
Although an appellate com1 may not expressly mention in its
opinion how every undecided issue will be handled, it is expected that the
comt from which the appeal was taken "will exercise its discretion to
18
decide any issue necessary to resolve the case" on remand. See, e.g., State
v. Schwab, 134 Wn. App. 635, 645, 141 P.3d 658 (2006); In ReMarriage
o(Rockwell, 157 Wn. App. 449, 453-454, 238 P.3d 1184 (2010); Geissler
Estate, 110 Wash. 14, 15-16, 187 P. 711 (1980). The Comt of Appeals
makes clear in its opinion that there were a number of issues raised by Mr.
Becena-Arevalo in his RALJ appeal, that some of those issues were not
addressed by the RALJ comt, and that of those issues accepted for review
by the Coutt of Appeals, the improper opinion issue was not being
decided. Appendix A. As such, the Comt of Appeals was clear that there
were other issues that likely needed to be considered on remand.
Although the Comt of Appeals did not expressly state that remand would
occur, remand was most celiainly implied. As further evidence of the
Court of Appeals' intent to remand the case to the RALJ comt is its
Mandate, iss·ued on May 30, 2014, prior to its discovery that Mr. Becerra
Axevalo had filed his Petition for Review. Appendix G.
Here, remand was a procedural issue that was implied by the Court
of Appeals' decision, and further evidenced by the premature Mandate it
issued. In resolving the remaining issues on remand, the RALJ court will
be bound by the Court of Appeals' decision, the law of the case
established by it, and the binding effect of its detetminations in deciding
any issues that remain on remand. Mr. Becena-Arevalo's appeal on this
l9
issue is premature, and discretionary review of his Petition for Review
should be denied.
IV. CONCLUSION
The unpublished decision the Comt of Appeals issued in this case
is umemarkable and consistent with existing law. Mr. Becena-Arevalo
has failed to demonstrate that this case poses a significant question of law,
involves an issue of substantial public interest, or otherwise warrants
review under RAP 13.4(b). He has merely attempted to re-craft and
disguise his untimely ineffective assistance of counsel claim. Not only is
that claim time-baned, but it lacks medt because the record reflects that
effective assistance of counsel was provided. Mr. Becerra-Arevalo's trial
and appellate counsel zealously advanced his interests. While his current
counsel may disagree with the tactics or strategies employed, the practice
of law is not a science, and disagreement does not mean effective
assistance was not afforded. Because the record contains no evidence to
supp01t Mr. Becerra-Arevalo's claims or that review is wananted under
RAP 13 .4(b ), his Petition for Review should be denied.
RESPECTFULLY SUBMITTED this~· 7"iay of June, 2014.
20
Y L. WHITE, WSBA #43595 t nt City Attorney
DECLARATION OF SERVICE
I, Kim Komoto, declare as follows:
I am a citizen of the United States of America, a resident of the
State of Washington, over the age of eighteen (18) years, not a party to the
above-entitled action, competent to be a witness herein, and have personal
knowledge ofthe facts stated below.
On June 27, 2014, I caused to be filed the foregoing Answer to
Petition for Review, on behalf of the City of Kent, with the Clerk of the
Comt of Appeals via the electronic filing@ www.courts.wa.gov. On this
same date, and in the manner indicated below, I caused the City's Answer
and this appended Declaration of Service to be served upon:
Elaine L. Winters Washington Appellate Project
701 Melboume Tower 1511 Third A venue Seattle, W A 98101
[X] Regular U.S. Mail
DATED at Kent, Washington on this 27111 d
APPENDIX A
201~ APR 28 AH 10: 26
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF KENT, ) )
Appellant, ) )
v. ) )
EVERARDO BECERRA-AREVALO, ) )
Respondent. ) _______________________ )
No. 69401-4-1
DIVISION ONE
UNPUBLISHED
FILED: April 28. 2014
Cox, J.- We granted discretionary review of the superior court's RALJ
order reversing the conviction of Everardo Becerra-Arevalo for assault in the
fourth degree with sexual motivation. The superior court ruled that the
prosecutor committed misconduct by eliciting testimony on Becerra-Arevalo's
credibility and by commenting on Becerra-Arevalo's exercise of his constitutional
right to confront witnesses against him. Because Becerra-Arevalo fails to
establish that the statements, to which he failed to object below, were improper
and prejudicial, we reverse the superior court's order and reinstate Becerra-
Arevalo's conviction.
On October 27, 2009, Becerra-Arevalo put his hands on Kelly Fitzpatrick's
breasts and attempted to kiss her at her place of employment. Fitzpatrick
reported the incident to the police. Thurston County Deputy Carrie Nastansky
responded to Fitzpatrick's report and investigated the allegation.
No. 69401-4-1/2
The City of Kent charged Becerra-Arevalo with assault in the fourth
degree with sexual motivation.
At trial, the City presented the testimony of Kelly Fitzpatrick, Deputy
Nastansky, and Teresa Plemmons-Hutchens, Becerra-Arevalo's supervisor.
Becerra-Arevalo also testified. We describe this testimony in more detail later in
this opinion.
The jury convicted Becerra-Arevalo of assault in the fourth degree with
sexual motivation.
He filed a RALJ appeal in superior court asserting, among other claims,
that the City committed prosecutorial misconduct by eliciting improper opinion
testimony from Deputy Nastansky and by commenting on Becerra-Arevalo's
constitutional tight to confront a witness against him. The superior court
reversed Becerra-Arevalo's' conviction on these grounds, concluding that:
[T]he cumulative effect of the combination of the police officer's comment on the credibility of the defendant and the emphasis by both counsel on lying during the officer's testimony with the comment on the defendant's presence during the witness's testimony when he had a constitutional right to. be there require reversal and remand for retriaU11
The superior court declined to address the additional issues
Becerra-Arevalo raised on appeal.
We granted the City's motion for discretionary r~view.
1 Clerk's Papers at 459-60.
-2-
No. 69401-4-1/3
PROSECUTORIAL MISCONDUCT
The City asserts that the superior court erred by concluding that the
prosecutor committed misconduct. We agree.
A defendant claiming prosecutorial misconduct bears the burden 9f
demonstrating that the challenged conduct was both improper and resulted in
prejudice.2 We review alleged misconduct "within the context of the prosecutor's
entire argument, the issues in the case, the evidence discussed in the argument,
and the jury instructions. "3
IMPROPER CONDUCT
Becerra-Arevalo contends, as he did on RALJ appeal, that several
incidents of misconduct deprived him of a fair trial. He first argues that the
prosecutor elicited impermissible opinion testimony on his credibility. He is
mistaken.
On direct examination, Deputy Nastansky described her initial contact with
Becerra-Arevalo, which occurred on November 12, 2009. Deputy Nastansky
testified that her conversation with Becerra-Arevalo "was kind of odd because it
was -I don't want to say he was trying to hide something. He was very careful
about what he said and how he answered the questions."4 The following
exchange then occurred:
2 State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). 3 State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). 4 Clerk's Papers at 11 0.
- 3-
No. 69401-4-114
[Prosecutor]:
[Deputy Nastansky]:
[Prosecutor]:
[D~puty Nastansky]:
Why did you have that opinion [that Becerra-Arevalo was being careful in answering your questions]?
Because he was slow to answer as .if he were trying to come up with a story in his head versus just if something had happened you would be able to freely tell the story and you wouldn't have to think about it. You just say what happened, nothing to· hide.
And did you get that perception with him here?
No. He was - it seemed to me like he was trying to hide something.!51
Generally, no witness may offer an opinion regarding the defendant's guilt
or veracity.6 A police officer's testimony on the veracity of another witness raises
additional concerns because "an officer's. testimony often carries a special aura
of reliability."7 However, testimony. that is not a direct comment on the
defendant's guilt or veracity, is helpful to the jury, and is based on inferences that
is not improper opinion testimony.8
Deputy Nastansky's initial statements do not amount to improper opinion
testimony. Rather, they were based on her observations of Becerra-Arevalo's
5 Clerk's Papers at 111 (emphasis added). 6 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007); State v. Rafay,
168 Wn. App. 734, 805, 285.P.3d 83 (2012), review denied, 176 Wn.2d 1023 (2013). 7 Kirkman, 159 Wn.2d at 928. . 8 State v. Fisher, 74 Wn. App. 804, 813-14, 874 P.2d 1381 (1994) (aff'd in part.
rev'd in part sub nom., State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995)).
-4-
No. 69401-4-115
demeanor when she confronted him about the allegation against him. Although
her statements may imply or suggest culpability, they were not direct comments
on Becerra-Arevalo's guilt.
Nor was Deputy Nastansky's subsequent testimony improper. The
statements were invited by defense counsel's line of questioning.
On cross-examination, Becerra-Arevalo's defense counsel inquired,
"And you said his answers were guarded? As far as you were aware did
you know if Mr. Becerra was aware of the claims that had been made
against him?" and, "The answers that were guarded as far as giving a
slow answer to was in response to his relationships with other females?"9
During redirect examination, the prosecutor followed up on defense
counsel's questions concerning whether Becerra-Arevalo appeared
"guarded":
[Prosecutor]:
[Deputy Nastansky]:
9 Clerk's Papers at 117.
Was [Becerra-Arevalo] also guarded with you on the events that occurred on October 271h?
Yes he was. ·And he lied to me also. He told me he didn't know why I was there, although he had already been contacted by the property manager, so you would assume that he would know why I was there.110l
1° Clerk's Papers at 120 (emphasis added).
- 5-
No. 69401-4-116
Then, on recross-examination, defense counsel posed numerous
questions regarding Deputy Nastansky's belief that Becerra-Arevalo lied to
her a.nd appeared guarded, including the following:
[Defense Counsel]:
[Defense Counsel]:
[Defense Counsel]:
[Defense Counsel]:
[Defense Counsel]:
[Defense Counsel]:
[Defense Counsel]:
11 Clerk's Papers at 122 . . 121d. 131d. 14 Clerk's Papers at 124. 151d. 16 Clerk's Papers at 125. 17 ld.
You said he lied to you? That's a pretty bold statement by an officer, wouldn't you agree?l11l
And you said that the reason you thought it was a lie was because this other person had talked to him previously?1121
You go from the perspective that someone's guilty of a crime. What about somebody that doesn't think they've committed a crime?l1 3l
You classify this as a lie. You specifically said it was a Jie.l141
So what about that statement is a Jie?11 51
If you were accused of a crime - most people that you deal with, when you accuse them of a crime, are they guarded?l161
So you're saying just the people that are guilty are guarded?l171
- 6-
No. 69401-4-1/7
[Defense Counsel]: And that's the statement that you're saying is a lie?l18l
On second redirect examination, the prosecutor asked Deputy Nastansky
additional questions about her conclusion that Becerra-Arevalo lied to her.
A prosecutor's. remarks do not constitute misconduct if they are invited by
defense counsel or are in reply to defense counsel's acts unless they "'go
beyond a pertinent reply and bring before the jury extraneous matters not in the
record, or are so prejudicial that an instruction would not cure them.'"19 . .
Here, Deputy Nastansky testified on redirect and second redirect
examination concerning her belief that Becerra-Arevalo lied to her. But Becerra-
Arevalo's defense counsel opened the door to this line of questioning. As
detailed above, on cross-examination, defense counsel posed questions about
Becerra-Arevalo appearing "guarded." Subsequently, on re-cross examination,
defense counsel relentlessly inquired about Deputy Nastansky's stated belief that
Becerra-Arevalo lied to her and appeared guarded. The prosecutor's questions
on redirect and second redirect examination were a direct and pertinent response
to defense counsel's series of questions.
Moreover, the prosecutor cannot be assigned fault for Deputy Nastansky's
.declaration that Becerra-Arevalo had "lied to me also." Statements in response
to a proseGutor's questioning when not elicited by the prosecutor are not
1a Clerk's Papers at 126. · 19 State v. Dennison, 72 Wn.2d 842, 849, 435 P.2d 526 (1967) (quoting State v.
LaPorte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961)); State v. Jones, 144 Wn. App. 284, 299, 183 P.3d 307 (2008).
-7-
No. 69401-4-1/8
characterized as prosecutorial misconduct.20 Deputy Nastansky volunteered her
opinion that Becerra-Arevalo had lied to her. The prosecutor did not pursue this
issue on redirect examination after Deputy Nastansky made that remark.
Instead, defense counsel reopened the issue on recross-examination. In light of
. this sequence of testimony, the prosecutor's questions were not improper.
Becerra-Arevalo additionally asserts that the prosecutor's closing
statements amounted to an improper comment on Becerra-Arevalo's
constitutional right to confront witnesses against him. We reject this contention.
During closing argument, the prosecutor stated to the jury, "[Y]ou saw how_
difficult it was for [Fitzgerald] to testify. You saw how painful it was for her to loo~
at the defendant. You saw how much she did not want to do that. You saw how
uncomfortable she was to be in this environment."21
"The State can take no action which will unnecessarily 'chill' or penalize
the assertion of a constitutional right and the State may not draw adverse
inferences from the exercise of a constitutional right."22 Specifically, the State
may not invite the jury to draw a negative inference from the defendant's e)(ercise
of a constitutional right.23 The right to confront witnesses against an accused is
one such right. 24
20 See State v. Jungers, 125 Wn. App. 895, 902, 106 P.3d 827 (2005). 21 Clerk's Papers at 325. · 22 State v. Gregory, 158 Wn.2d 759, 806, 147 P.3d 1201 (2006) (quoting State v.
Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984)). 23 Gregory, 158 Wn.2d at 806 (citing State v. Jones, 71 Wn. App. 798, 811-12,
863 P.2d 85 (1993)). 24 U.S. Const. amend. XI; Wash. Const. art. I,§ 22.
- 8-
No. 69401-4-119
But a prosecutor has wide latitude in closing arguments to draw
reasonable inferences from the facts in evidence and to express such inferences
to the jury.25 Moreover, "not all arguments touching upon a defendant's
constitutional rights are impermissible comments on the exercise of those
rights."26 The question is whether the prosecutor "manifestly intended the
remarks to be a comment on that right."27
A review of the prosecutor's entire closing argument makes clear that her
statements were not in any way a comment on Becerra-Arevalo's exercise of his
constitutional rights. In closing, the prosecutor emphasized that the case hinged
on the witnesses' credibility and that the jury alone was responsible for judging
credibility. The prosecutor's reference to Fitzpatrick's demeanor was in support
of her argument that the jury must consider the witnesses' motives and
credibility. No evidence demonstrates that the prosecutor's intention was to
comment on Becerra-Arevalo's right to confront witnesses against him.
We conclude that the prosecutor's conduct was not improper.
PREJUDICE
Even assuming the prosecutor's comments were improper, Becerra
Arevalo's prosecutorial misconduct claim fails because he does not satisfy the
heightened standard of review on appeal for prejudicial effect.
Once a defendant establishes that the prosecutor's conduct was improper;
a reviewing court determines whether the d~fendant was prejudiced under one of
25 Gregory, 158 Wn.2d at 860; Dhaliwal, 150 Wn.2d at 577. 26 Gregory, 158 Wn.2d at 806. 27 State v. Crane, 116 Wn_.2d 315, 331, 804 P.2d 10 (1991).
- 9-
No. 69401-4-111 0
two standards of review. 28 If the defendant objected at trial, "the defendant must
show that the prosecutor's misconduct resulted in prejudice that had a
substantial likelihood of affecting the jury's verdict."29 H.owever, where, as here,
the defendant failed to object to the prosecutor's alleged misconduct,. "the
defendant is deemed to have waived any error, unless the prosecutor's
misconduct was so flagrant and ill intentioned that an instruction could not have
cured the resulting prejudice."3o
Under this latter heightened standard of review, Becerra-Arevalo carries
the burden of establishing that "(1) 'no curative instruction would have obviated
any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that
'had a substantial likelihood of affecting the jury verdict.'"31 Moreover,
"[r]eviewing courts should focus Jess on whether the prosecutor's misconduct
was flagrant or ill intentioned and more on whether the resulting prejudice ·could
have been cured.''32 Even flagrant misconduct can be cured.33
Because Becerra-Arevalo did not object at trial to the prosecutor's alleged
misconduct, he must establish prejudice under the heightened standard. He fails
to meet this burden here.
We first note that any prejudice derived from Officer Nastansky's remarks
was primarily attributed to defense counsel's persistent questioning regarding
28 State v. Emerv, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). 29Jd. 30 I d. at 760-61 31 ld. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43
(2011)). 32 I d.· at 762. 33 1d. at n.13 (citing State v. Warren, 165 Wn.2d 17, 27, 195 P.3d 940 (2008)).
- 10-
No. 69401-4-1111
Deputy Nastansky's belief that Becerra-Arevalo was lying and her theories on the
relationship between being guarded and being guilty. As discussed above,
Becerra-Arevalo's defense counsel repeatedly posed questions to Deputy
Nastansky on this topic. This sequence of testimony diminishes Becerra
Arevalo's contention that the prosecutor's conduct was flagrant or ill-intended.
Any prejudicial impact was exacerbated, if not initially caused, by defense
counsel.
Second, Becerra-Arevalo cannot prove that a curative instruction would
not have obviated any prejudicial impact on the jury. To the contrary, any
prejudicial effect resulting from the prosecutor's alleged misconduct was
neutralized by ~he jury instructions.34 Here, the jury was instructed, "You are the
sole judges of the credibility of each witness. You are also the sole judges of the
value or weight to be given to the testimony of each witness. "35 The instructions
also stated, "The lawyers' remarks, statements, and arguments are intended to
help you understand the evidence and apply the law. It is important, however, for
you to remember that the lawyers' statements are not evidence .... "36 The
prosecutor referred to these instructions numerous times during closing
argument. We presume that the jury followed the court's instructions.37
34 See State v. Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008) ("Important to the determination of whether opinion testimony prejudices the defendant is whether the jury was properly Instructed.").
35 Clerk's Papers at 8. 36fd. 37 State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).
- 11 -
No. 69401-4-1112
Moreover, defense counsel made no effort to defuse the alleged prejudice
by requesting a curative instruction or objecting to the prosecutor's remarks. The
absence of a curative instruction or motion for mistrial strongly suggests that the
conduct was not prejudicial.38 Even "[i]fthe prejudice could have been cured by
a jury instruction, but the defense did not request one, reversal is not required."39
Furthermore, "[c]ounsel may not remain silent, speculating upon a favorable
verdict, and then, when it is adverse, use the claimed misconduct as a life
preserver ... on appeal."40 This appears to be the case here.
Becerra-Arevalo also fails to show a substantial likelihood that the
prosecutor's statements affected the jury's verdict. Deputy Nastansky was not
the sole witness in this case whose testimony undermined Becerra..,Arevalo's
credibility-Fitzpatrick and Plemmons-Hutchens also offered testimony
unfavorable to Becerra-Arevalo.
Becerra-Arevalo testified that when Deputy Nastansky arrived to speak to
him on. November 12, 2009; he did not know the reason for her visit and was
unaware of any allegations against him. Becerra-Arevalo further testified that his
manager, Teresa Plemmons-Hutchens, first spoke to him about the allegation on
November 12, 2009, after Deputy Nastansky had contacted him. But Plemmons
Hutchens's testimony contradicted Becerra-Arevalo's statements. She testified
that she spoke to Becerra-Arevalo on November 2, 2009-10 days before
38 See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). 39 Dhaliwal, 150 Wn.2d at 578 (citing State v. Russell, 125 Wn.2d 24, 85, 882
P.2d 747 (1994)). 40 Jones v. Hogan, 56 Wn.2d 23, 27, 351 P.2d 153 (1960).
- 12-
No. 69401-4-1/13
Deputy Nastansky contacted him-and informed him of the allegation against
him.
Furthermore, during direct examination, Becerra-Arevalo denied visiting
the property where Fitzpatrick worked on the day of the assault. However, time
cards, written in Becerra-Arevalo's handwriting, proved contrary. They showed
that Becerra-Arevalo worked at Fitzpatrick's office building on the day of the
assault and at approximately the same time Fitzpatrick testified the assault
occurred. Plemmons-Hutchens also testified that Becerra-Arevalo told her that
he visited the property where Fitzpatrick worked on the day of the assault and
that Fitzpatrick was not there.
Finally, on cross-examination, Becerra-Arevalo denied touching or kissing
Fitzpatrick. He also de~ied admitting to Plemmons-Hutchens that he assaulted
Fitzpatrick. But Plemmons-Hutchens later testified that, on November 12, 2009,
Becerra-Arevalo admitted to her that he had hugged and kissed Fitzpatrick.
Therefore, significant testimony conflicted with Becerra-Arevalo's version of
events surrounding the assault. He cannot demo~strate that any prejudice
substantially impacted the jury's verdict.
Accordingly, Becerra-Arevalo fails to show that the heightened standard of
review for prejudicial effect has been met.
Because we reverse on the prosecutorial misconduct issue, we need not
resolve the City's additional claim of error concerning the admissibility of opinion
testimony.
- 13-
----------····-· ·-------
No. 69401-4-1/14
We reverse the RALJ court's order reversing Becerra-Averalo's conviction
and reinstate the municipal court's judgment and senten~ r J".
WE CONCUR:
- 14-
APPENDIXB
•.'
1
2
3
4
5
6
7
In the Superior Court of Washington for King County 8
9 City of Kent, ) Case No.: 12-1-01212-8 KNT )
10 Plaintiff/Respondent,) Order on RALJ Appeal )
11 vs. ) ) CLERK'S ACTION REQUIRED
12 Everardo Becerra-Arevalo; ) )
13 Defendant/Appellant·. ) ____________________________ ) 14
15 THIS MATTER, having come before the court for oral argument
16 on September 7, 2012, pursuant to RALJ 8.3 before the
17 undersigned Judge of the above-entitled court, and, the court,
18 having reviewed the record on appeal, the transcript, and the
19 written and oral argument of the parties,
20 DOES HEREBY HOLD AS FOLLOWS: the
21
23
24
25 Order on RALJ Appeal - 1
Stewart Beall MacNicho & Harmell, Inc., P.S.
655 W. Smith Street, #21
Kent, WA 9803 (253) 859-884o; fax (253) 859-221
1 'rl~~j-fo lot ~ve_ ~lrf. ~ MJ_ r'eiM~& rr+n-.J. 2 ·-lli<- cwr-\- k-r~ w±k;wA tv-ro,- Vvt:t~ n:-jewel .=f, -ftu. {JA.Otzb.Dv1trle1 ~ i-4. 3 ·~ , iA.J.ttH.+ c,t{;J(j"\.1 t..lt:7, aM ~i~$tttt:- tll1 ec{ U ~"V\ ·-f'he hC.t$WI'J iJn
4 ~~·s i$S IAe.. \ --Jt\t ~e ~""YtGl ~~ ---\-ktr.;~ cJL~,s were, bA r<:Gt.c~{ . s IT IS HEREBY ORDERED that the above cause is remanded to
6 Kent Municipal Court for further proceedings, in accordance with
7 the above decision.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PO~ at Andrea L. Beall, WSBA 26028 Att~rney for Defendant/Appellant
d as to form by:
WSBA# Plai~tiff/Respondent
Order on RALJ Appeal - 2
Hon. L. McC~ough Superior Court Judge
QRIG\NAL Stewart Beall MacNicho
& HarmeD, Inc., P.S. 655 w. Smith Street, #2.1
Kent, WAg8o (253) Bsg-884o; fax (253) Bsg-221
APPENDIXC
King County Superior Court Cause No. 12-1-01212-8 KNT Kent Municipal Court Cause No. K77970
No. NOT YET RECEIVED
DIVISION ONE OF THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CITY OF KENT,
Petitioner
v.
EVERARDO BECERRA-AREVALO.
Respondent
MOTION FOR DISCRETIONARY REVIEW
TAMMY L. WlllTE WSBA#43595
CITY OF KENT Attorneys for Petitioner
220 Fourth Ave. S. Kent, WA 98032 . (253) 856-5770
A. IDENTITY OF PETITIONER
The City of Kent, by and through its prosecuting attorney, Tammy
L. White, asks this court to accept review of the RALJ decision designated
in Part B of this Motion for Discretionary Review.
B. DECISION
The City of Kent respectfully requests pursuant to RAP 2.3(d)(l)
and (d)(3), that this court grant its Motion for Discretionary Review of
King County Superior Court Judge LeRoy. McCullough's Order on RALJ
Appeal, dated and filed on September 7, 2012, which reversed the
conviction of Everardo Becerra-Arevalo, Respondent, ("Mr. Becerra") for
Assault in the Fourth Degree With Sexual Motivation and remanded for
retrial, based on claims of prosecutorial misconduct without consideration
of the standard of review required when Mr. Becerra failed to object at
trial. A copy of the Order on RALJ Appeal· is included within the
Appendix.
C. ISSUES PRESENTED FOR REVIEW
1. Did the Superior Court err when it held that Mr. Becerra's
conviction in Kent Municipal Court should be reversed and the case
remanded for re-trial for prosecutorial misconduct based on improper
opinion testimony and comments on Mr. Becerra's trial right to confront
2
witnesses when Mr. Becerra did not object at trial and the Superior Court
did not consider the applicable standard of review required by State v.
Emery, 174 Wn.2d 741, 278 P.3d 653 (2012)?
2. Did the Superior Court err when it held that Mr. Becerra's·
conviction in Kent Municipal Court should be reversed and the case
remanded for · re-trial when the prosecutor's questions were invited,
provoked, or in pertinent reply to Mr. Becerra's questioning under State v.
Ramos, 164 Wn. App. 327,263 P.3d 1268 (2011)? .
3. Did the Superior Court err when it held that Mr. Becerra's
conviction in Kent Municipal Court should be reversed and the case
remanded for re-trial when error was invited by Mr. Becerra in accordance
with In. Re: Pers. Restraint of Tortorelli, 149 Wn.2d 82, 66 P.3d 606
(2003)?
D. STATEMENT OF THE CASE
On December 12, 2011, trial began in a criminal case in the Kent
Municipal Court against Mr. Becerra on the charge of Assault in the
Fourth Degree with sexual motivation. RP 21• The trial concluded the
following day with the jury returning a guilty verdict on the charge and a
1 Report of Proceedings are referred to as "RP" and copies of the cited portions are included within the attached Appendix.
3
finding on special verdict that the assault was committed with sexual
motivation. RP 299.
At trial, the victim, Kelly Fitzpatrick, testified that on the date of
the assault, October 27, 2009, Mr. Becerra came up behind her, reached
underneath her, and put both his hands on her b:r:easts. RP 21, 22. The
victim, stunned, then walked to and sat in her chair, with Mr. Becerra
following, who then bent down and tried to kiss her. RP 22, 27. The
victim turned her head, and Mr. Becerra ended up kissing her on the
cheek. RP 22. The victim then told Mr. Becerra to leave, and he left
without further incident. RP 22, 27. When efforts to report the assault to
her sup~rvisor failed to bring about responsive action, the victim reported
the assault to police. RP 28-30.
During trial, former Kent Police Officer Carrie Nastansky2 testified
that she responded to the victim's 911 call on November 12, 2009. RP 50-
51. When the prosecutor asked the officer on direct if Mr. Becerra had
said anything to her about the assault, the officer testified that the
conversation was odd, and Mr. Becerra was "careful" in how he answered.
RP 56. Mr. Becerra's counsel did not object to the officer's statement.
RP 56. When the prosecutor asked the officer why she believed Mr.
2 Currently a Deputy with the Thurston County Sheriff's Office. 4
I.
Becerra was being careful, Mr. Becerra's counsel then objected on the
basis of "speculation," but not on the basis of improper opinion or
prosecutorial misconduct. RP 56-57. The trial court then permitted the
officer to respond and she described what it was about Mr. Becerra's
demeanor that led her to believe he was being careful-he was slow to
answer, he was not freely telling his story. RP 57.
On cross, Mr. Becerra's counsel asked the officer if Mr. Becerra
was only "guarded". (a term the officer had not used) with respect to
questions about his relationships with women at work. RP 63. On re
direct, and in response to counsel's implied limitation, the prosecutor
asked the officer if Mr. Becerra was guarded in other respects, to which .
the officer stated, "Yes he was. And he lied to me also. He told me he
didn't know why I was there, although he had already been contacted by
the property manager, so you would assume he would know why I was
there." RP 65-66. Mr. Becerra's counsel did not object, did not move.to
strike, and did not move for a mistrial. RP 66. The prosecutor
immediately moved on.
On re-cross, however, Mr. Becerra's counsel questioned the officer
extensively concerning Mr. Becerra's apparent "lie" to the officer:
5
Q: You said he lied to you? That's a pretty bold statement by an officer, wouldn't you agree? RP 68, line 1-2.
Q: And you said that the reason you thought it was a lie was because this other person had talked to him previously? RP 68, line 8-9.
Q: You go from the perspective that someone's guilty of a crime. What about somebody that doesn't think they've committed a crime? RP 68, line 21-22.
Q: You classify this as a lie. You specifically said it was a lie. RP 70, line 14.
Q: So what about that statement is a lie? RP 70, line 16.
Q: I'm asking about that statement specifically, not your interactions. RP 70, line 18.
Q: If you were accused of a crime--niost people that you deal with, when you accuse them of a crime, are they guarded? RP 71, line 9-10.
Q: So you're saying just the people that are guilty are guai-ded? R;p 71, line 12.
Q: And that's the statement that you're saying is a lie? RP 72, line 10 ..
6
RP 68-77. Through leading questions to the officer, Mr. Becerra's counsel
drew the conclusions that "just the people that are guilty are guarded,"
"people that are guarded are guilty," "and people that are not guilty but
accused of a crime are not guarded." RP 71, line 12; RP 77, lines 17-21.
None of this questioning was elicited by the prosecutor.
Due to Mr. Becerra's counsel substantially opening the door and
inviting the questioning, the prosecutor, on her second re-direct, asked the
officer the basis for her opinion that Mr. Becerra had lied to her, as that
opinion was elicited by the questioning conducted by Mr. Becerra's
counsel:
Q: Given those statements and given the rest of your investigation, why was it that you felt the defendant was lying to you?
RP 74, lines 8-9.3. Again, Mr. Becerra's counsel objected on the basis of
"speculation," not improper opinion or prosecutorial misconduct, and the
trial court allowed the officer to answer the question. RP 74. In response,
the officer testified:
A: Because he-just the way that he kind of-when you're asked a certain question and then you answer part of it, but you don't answer the full part of it, you're really kind of choppy on what the answers are
"
RP 74-75. The prosecutor then continued:
7
Q: So Officer, focusing just on that initial contact that you had with the defendant and your statement today that you felt that the defendant was lying to you on that day, do you base that statement on your entire investigation and all of the information that you obtained during that investigation? RP 75, line 13-17.
A: Yes.
·I
RP 75, line 18. No objection, motion to strike; or motion for a mistrial
was made by Mr. Becerra
.Q: And do you base that opinion based on what you were told by other individuals about what occurred and what was communicated to the defendant? RP 7 5, lines 19-21.
A: Yes.
RP 75, line 22. Again, no objection, motion to strike, or motion for a
mistrial was made by Mr. Becerra
During trial, the victim's courtroom testimony regarding the
assault was consistent with what she previously reported to the officer and
Mr. Becerra's boss. RP 22, 53, 212. While Mr. Becerra chose to testify
on his own behalf, his testimony, in contrast with the· victim's, was
inconsistent with his prior statements and other witness testimony. On
direct, Mr. Becerra testified he was not aware of the victim's assault
allegations until the officer's November 12, 2009, arrival. RP 117-118.
He also denied multiple times ever talking to his boss about the victim's
8
allegations prior to November 12, 2009. RP 118-1_19. However, his boss
testified ~n rebuttal that she met with Appellant 10 days earlier, on
November 2, 2009, and informed him of the victim's allegations. RP 202,
204, 207-208. In his testimony, Mr. Becerra also denied being on the
property where the victim's office was located near the time of the assault,
which was also contradicted by time card records completed by Mr.
Becerra and his prior admission to his boss that he had been on the
property to inspect the meter, but the victim was not there. RP 116, 117,
129; RP 212-213, 220-222. On cross, Mr. Becerra denied ever touching or
kissing the victim, on any occasion, though that too was contradicted by
an admission he made to his boss on November 12, 2009. RP 133, 134;
218. The victim, however, testified both on direct and in rebuttal that no
hug or kiss ever occurred prior to the assault. RP 20, 248.
During closing, the prosecutor stressed to the jury multiple times
that they, and they alone, were the sole judges of each Witness's
credibility. RP 266, 267, 271. The prosecutor discussed with the jury
those things included in their 'instructions that they may consider when
assessing credibility, including a witness's demeanor while testifying. RP
271-272. The prosecutor asked the jury to ask themselves if they believed,
based on the victim'S demeanor when she testified, that she was making
9
up the allegations, and to consider what motive, bias, or prejudice the
victim would have to fabricate her claims, to come into a room full of
strangers and tell them something very personal that had happened to
her-· that Mr. Becerra had touched her breasts and kissed her. RP 272-
273. No objection was made by Mr. Becerra to these closing statements.
The jury returned a verdict finding Mr. Becerra guilty of Assault in
the Fourth Degree and returned a special verdict finding that the assault
was committed with Sexual Motivation. Mr. Becerra timely filed review
of the conviction alleging, among other things, prosecutorial misconduct.
At RALJ, the Superior Court entered an Order on RALJ Appeal
finding that the cumulative effect of the officer's comments on the
credibility of the defendant and his lying, with the prosecutor's comment
in closing regarding the defendant's presence during the victim's
testimony was sufficient to warrant reversal of the conviction and remand
for re-trial for prosecutorial misconduct. However, in rendering its
decision, the Superior Court never addressed: (1) the issues in the context
of the standard of review required by State v. Emery, 174 Wn.2d 741, 278
P.3d 653 (2012), when Mr. Becerra failed to properly object at trial, and
failed to address how no curative instruction could have corrected any
prejudice had Mr. Becerra objected; (2) whether the prosecutor's remarks
10
were invited, provoked, or in pertinent reply to Mr. Becerra's questioning
and therefore barred from reversal under State v. Ramos, 164 Wn. App.
327, 263 P.3d 1268 (2011), or (3) whether error was invited by Mr.
Becerra in aGCordance with In Re: Pers. Restraint of Tortorelli, 149 Wn.2d
82, 66 P .3d 606 (2003) and therefore barred from review.
E. ARGUMENT WHY REVIEW SHOULD BE ACCEPTED
RAP 2.3( d) allows discretionary review of a superior court RALJ
decision in certain instances. Here, the following sections of RAP 2.3(d)
are applicable:
(1) If the decision of the superior court is in conflict with a decision of the Court of Appeals or the Supreme Court; or
(3) If the decision involVes an issue of public interest which should be determined by an appellate court; or
In Rendering Its Order on RALJ Appeal, the Trial Court Ignored The Standard Of Review Required By State v. Emery In Appeals Claiming Prosecutorial Misconduct Where There Was No Objection At Trial. ·
In a prosecutorial misconduct claim, the defendant bears the
burden of proving that the prosecutor's comments were both improper and
prejudicial, ru:id when no objection is made at trial, a heightened standard
applies and the defendant is deemed to have waived any error unless he
11
can prove both that the prejudice had a substantial likelihood of affecting
the verdict, and that the prosecutor's comments were so flagrant and ill
intentioned· that no curative instruction would have obviated any
prejudicial effect on the jury. State v. Emery, 174 Wn.2d 741, 759-761,
278 P.3d 653 (2012). The focus of this inquiry is more on whether the
resulting prejudice could have been cpred, rather than the flagrant or ill
intentioned nature of the remarks. ld, 174 Wn.2d at 762. The appellate
court is to make this review in the context of the total argument, the issues
in the case, the evidence admitted, and the instructionS provided. State v.
Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007).
Here, the Superior Court ruled that the prosecutor's comments
were improper because: (1) they solicited from the officer testimony
concerning the defendant lying to her, and (2) they were cori:nnents in
closing that touched upon Mr. Becerra's constitutional right to confront
witnesses. However, in reversing the conviction and remanding the case
for re-trial, the Superior Court failed to find that the prejudice had a
substantial likelihood of affecting the verdict, and more importantly,
because there was no objection at trial, the Superior Court failed to
consider whether the prosecutor's comments were so flagrant and ill
intentioned that no instruction could have cured the resulting prejudice. In
12
fact, there was no discussion or consideration by the Superior Court as to
how a proper objection, motion to strike, or request for a jury instruction
would have affected any prejudice that may have occurred had Mr.
Becerra fulfilled his duty of properly objecting at trial. The Supreme
Court held in State v. Emery that a reviewing court must consider what
would likely have happened if the Defendant had timely objected and this
consideration is required before a re-trial may be granted. Id., at 763-764.
This consideration is particularly important in the instant case where there
was testimony about the defendant's demeanor from which the jurors
could have interpreted the officer's opinion as a description of the
defendant's behavior rather than an opinion on his credibility, permissible
by State v. Hager, 171 Wn.2d 151, 160-161, 248 P.3d.512 (2011), where
there was significant evidence outside of the officer's testimony from
which the jury could have chosen to disbelieve Mr. Becerra given his
inconsistent and rebutted testimony, and where the alleged error was
invited or provoked by Mr. Becerra through his cross-examination of the
officer concerning Mr. Becerra's "lie" to her.
Additionally, in further supporting its reversal and remand, the
Superior Court found the prosecutor's comment in her closing statement
improper and a comment on Mr. Becerra's constitutional right to confront
13
witnesses where, when discussing the victim's credibility, the prosecutor
discussed the victim's demeanor while testifying:
But now Kelly, you saw how difficult it was for her to testify. You saw how painful it was for her to look at that defendant. You saw how much she did not want to do that. You saw how uncomfortable she was to be in this environment. And she told you she di$'t want all of this to come out of this. She just wanted somebody to do something. She wanted to feel like she was heard. She wanted to have no contact with this individual. She contacted the police after she felt like nobody else did anything. Nothing was being done.
Do you believe that based on her demeanor when she testi.fied that she made all of this up?
You saw how she testified. You take into account, in assessing their credibility and their bias and their motives, their demeanor as well. She was crying. She was upset. She answered the questions off the cuff. She wasn't contemplating. She wasn't taking time to formulate her answer for you. She told you, as I asked her the questions, what happened on that day. It was difficult for her, as you could guess from her· demeanor. And what motive does Kelly have to come into this court and make up all this stuff? He's a maintenance worker. They didn't have any sort of relationship. He's a maintenance worker. What does she gain by claiming all of this occurred if ii didn't? What motive does she have to lie?
When you consider that, consider what motive, bias, prejudice Kelly has. What does she gain? Other than coming into a room full of strangers and telling about
14
something very personal that happened to her on that day. To come in to all of you who she's 'never seen before and say that her breasts were touched and that she was kissed on the cheek.
RP 271-273. Again, these statements were not objected to at trial and no
motion to strike was made by Mr. Becerra, and the Superior Court failed
to address what prejudice these comments created that had a substantial
likelihood of affecting the verdict and why no instruction could have cured
that prejudice, particularly when considering it in the context of the total
argument, the issues in the case, the evidence admitted, and the
instructions provided to the jury. Here, the prosecutor stated multiple
times in closing that this case would come down to credibility, which was ·
for the jury and the jury alone to decide. RP 266, 267, 271. The
prosecutor discussed with the jury those things included in their
instructions that they consider when they assess credibility-bias, motive,
demeanor. RP 271-272. The prosecutor's statements concerning the
victim's demeanor had nothing to do with Mr. Becerra's right to qonfront
the victim, and everything to do with the jury judging the victim's
credibility as she testified.
Because the Superior Court's Order on RALJ Appeal is in conflict
with the standard of review reiterated by State v. Emery and is an issue of
public interest, the City of Kent respectfully requests the Court of Appeals
15
grant discretionary review of. the Order on RALJ Appeal under RAP
2.3(d)(1) and (3).
The Prosecutor's Comments Were Invited. Provoked, Or In Pertinent Reply To Mr. Becerra's Questioning And Under State v. Ramos, the Superior Court Erred in Granting His Appeal.
Improper remarks by a prosecutor are not grounds for reversal if
inv~ted or provoked by defense counsel, unless the remarks are not in
pertinent reply or are so prejudicial that a curative instruction would be
ineffective. State v. Ramos, 164 _Wn. App. 327, 263 P.3d 1268 (2011).
Here, all of.the exchanges about Mr. Becerra "lying" to the officer came
from his counsel on re-cross of the officer. RP 68-73. In fact, it was Mr.
Becerra's counsel that drew the conclusions, in leading questions to the
officer, that ''just the people that are guilty are guarded," "people that are
guarded are guilty? That's your experience," "[a]nd people that are not
guilty but accused of a crime are not guarded a,round you." RP 71, line 12,
77, line 17-21. In the prosecutor's second re-direct, and based on Mr.
~ecerra significantly opening the door, the prosecutor asked the officer
why it was that she felt Mr. Becerra lied to her. RP 74, line 8. The officer
then explained the demeanor she observed. RP 74-75. This questioning
was permissible by State v. Ramos because the comments were in
_pertinent reply to Mr. Becerra's significant questioning of the officer on
16
cross of the "lie" Mr. Becerra told her. However, the Superior Court held
this se~ond re.:.d.irect was improper and the Superior Court used it as a
basis .to reverse the conviction and remand for re-trial, a decision contrary
to the standard set out in State v. Ramos.
Because the Superior Court's Or~er on RALJ Appeal is in conflict
with the standard reiterated by State v. Ramos, 164 Wn. App. 327, 263
P.3d 1268 (2011), the City of Kent respectfully requests the Court of
Appeals grant discretionary review of this issue under RAP 2.3(d)(l) and
(3).
Mr. Becerra Invited Error Under In Re: Pers. Restraint o(Tortore/li And The Superior Court Erred in Granting His Appeal.
The invited error doctrine prohibits· a party from setting tip an error
in the trial court and then complaining of it on appeal. In Re: Pers.
Restraint of Tortorelli, 149 Wn.2d 82, 94, 66 P.3d 606 (2003). Here, it
was Mr. Becerra who elicited testimony from the officer, through leading
questions, that he was guilty of the crime because he was guarded in his
answers t~ the officer's questions. Therefore, Mr. Becerra cannot now
attribute this testimony to the prosecutor and seek reversal due to
prosecutorial misconduct where no such misconduct exists. Because the
Superior Court's Order on RALJ Appeal is in conflict with In Re: Pers.
Restraint of Tortorelli, 149 Wn.2d 82, 94, 66 P.3d 606 (2003), the City of
17
Kent respectfully requests the Court of Appeals grant discretionary review
of this issue under RAP 2.3(d)(1) and (3).
F. CONCLUSION
For the reasons indicated in Part E above, and based on the files
and records herein, the City of Kent respectfully requests the Court of
Appeals grant discretionary review of these issues under RAP 2.3(d)(I)
and (3), reverse the Superior Court, and affirm Mr. Becerra's conviction
for Assault in ~e Fourth Degree with Sexual Motivation entered in the
Kent Municipal Court on December 13, 20 11 ..
RESPECTFULLY SUBMITTED this_._ day of October, 2012.
CITY OF KENT
TOM BRUBAKER, CITY;;~;;_ /D"lbWJ ~ I/IJI~ .
18
APPENDIXD
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
CITY OF KENT,
Petitioner,
v.
EVERARDO BECERRA-AREVALO,
Respondent.
") ) ) ) ) ) ) ) ') ___________________________ )
No 69401-4-1 ·
ORDER GRANTING DISCRETIONARY REVIEW
The CitY seeks discretionary review of the superior court's reversal of Becerra
Arevalo's conviction for assault In the fourth degree with sexual motivation. The
superior court's reliance on prosecutorial m.isconduct likely conflicts with current case
law. Therefore, we grant discretionary review.
FACTS
Everardo Becerra-Arevalo worked as a maintenance man for the owner of
several industrial parks. He became friendly.with Kelly Fitzpatrick, the office manager of
one of the tenants. The two had occasional conversations and once went out to lunch
together. Then, during a work visit in October 2009, Becerra-Arevalo allegedly put his
hands on Fitzpatrick's breasts and attempted to kiss her. Fitzpatrick repof1:ed the
incident to her supervisor but was unsatisfied. by the lack of action in response to the
a~sault. More than two weeks later, she· reported the assault to the police. After an
investigation, the City of Kent (City) charged Becerra-Arevalo with assault in the fourth
degree with sexual motivation.
Investigating officer Carrie Nastansky was one of the main witnesses for the
prosecution. On direct examination, Nastansky testified about her original conversation
No 69401-4-1/2
with Becerra-Arevalo. According to Nastansky, Becerra-Arevalo claimed to have no idea
why she had come to speak with him. She·recalled the conversation as "kind of odd."
She went on to say, "I don't want to say he was trying to hide something. He was very
careful about what he said and how he answered questions." In response to further
questions Nastansky elaborated, "he was slow to answer as if he were trying to come
up with a story in his head versus just if something had happened you would be able to
freely tell the story and you wouldn't have to think about it." According to Nastansky, "it
seemed to me like he was trying to hide something."
During redirect examination, Officer Nastansky again testified that she beliE,wed
Becerra was very guarded and careful in · his answers to her questions during the
investigation. She later reiterated that he had been guarded and followed with, "And he
lied to me also. He told me he djdn't know why I was there, although he ha.d already
been contacted by the property manager, so you would assume that he would know
why I was there." Defense counsel did not object. The prosecutor did not ask follow up
questions in response to this statement.
On recross-examination, Defense counsel elicited further testimony concerning
the officer's belief that Becerra had lied. He asked several questions on the subject.
The defense also cross-examined Nastansky about her testimony that Becerra-Arevalo
had been "guarded."
Q: If you were accused of a crime-most people you deal with, when you accuse them of a crime, are they guarded?
A: If they're guilty.
Q: So you are saying just the people that are guilty are guarded?
2
No 69401-4-1/3
A: Most of them.
On second redirect, the prosecutor asked Nastansky more questions about her
conclusion that Becerra had lied. During the final recross-examination, the defense
revisited the relationship between guarded c~mversation and guilt.
Q: ... [T]hen you had someone who denied a crime. And you testified that that person, when you were investigating them for a· crime was being guarded. And people that are guarded are guilty? That's your experience as an officer?
A: · Correct.
Q: And people that are not guilty but accused of a crime are not guarded around you?
A: For the most part.
This exchange concluded Officer Nastansky's testimony.
The jury convicted Becerra of assault in the fourth degree with sexual motivation.
Becerra appealed to the superior court, alleging prosecutorial misconduct among other
issues.. The superior court concluded that,
[T]he cumulative effect of the combination of the police officer's comment on the credibility of the defendant and the emphasis by both counsel on lying during the officer's testimony with the comment on the defendant's presence during the witness's testimony when he had a constitutional right
. to be there require reversal and remand for retrial.
The City now seeks discretionary review of the superior court's decision to reverse the
conviction and remand for further proceedings.1
1 Becerra-Arevalo moved in the alternative to have this court consider an ineffective assistance of counsel claim upon acceptance of the City's motion for discretionary review. The issue is untimely. RALJ 2.5(a); RAP 5.2(b). Becerra-Arevalo did not raise the issue on appeal to the Superior Court. We will not consider it for the first time on discretionary review.
3
No 69401-4-114
DISCRETIONARY REVIEW
Discretionary review on RALJ requires the petitioner to meet strict criteria
established by RAP 2.3(d). In this case, the City seeks review under RAP 2.3(d)(1)
and(3).
Discretionary review of a superior court decision entered in a proceeding to review a decision of a court of limited jurisdiction will be accepted only:
(1) If the decision of the superior court is in conflict with a decision of the Court of Appeals or the Supreme Court; or
(3) If the decision involves an issue of public interest which should be determined by an appellate court.
RAP 2.3(d). The City claims three errors hi its petition: (1) the superior court did not use
the proper standard of review for alleged prosecutorial misconduct without an objection
as established in State v. Emerv, 174 Wn.2d 741, 760-61, 278 P.3d 653 (20'12); (2) the
superior court failed to consider that the prosecutor's improper remarks were not
grounds for reversal because they were invited or provoked as described in State v. '·
Ramos, 164 Wn. App. 327, 334, 263 P.3d 1268 (2011); and (3) the invited error
doctrine, In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 66 P.3d 606 (2003), prohibits
the defendant from drawing out the testimony about the police officer's opinion that
Becerra lied to her and then complaining about it on appeal.
A prosecutor commits misconduct by asking a witness whether another witness
is lying. Ramos, 164 Wn. App. at 334. However, "[i]mproper remarks by the prosecutor
are not grounds for reversal if invited or provoked by defense counsel 'unless the
remarks are not a pertinent reply or are so prejudicial that a curative instruction would
4
No 69401-4-J/5
be ineffective." ld. (quoting State v. Ru~sell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994));
see also, State v. Dennison, 72 Wn.2d 842, 849, 435 P.2d 526 (1967); State v. Graham,
59 Wn. App. 418, 428-9, 798 P.2d 314 (1990). Here, the prosecutor did not ask
whether the defendant was lying. Officer Nastansky volunteered that statement during
redirect examination. The prosecutor did not pursue the issue after the Officer made
the comment Rather, defense counsel reopened the issue and asked a series of
questions about Nastansky's opinion that Beverra-Arevalo had lied. He also posed . ..
questions and elicited testimony about Nastansky's belief that guilty people are guarded
around her. Only after the defense resurrected the issue did the prosecutor ask follow-
up questions about the lie. Given the sequence of the testimony in this case, we
believe the prosecutor's questions were a pertinent r~ply to questions asked by the
defense. Any error appears invited. See, Tortorelli, 149 Wn.2d at 94; State v.
Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). In addition, no objection was
made to any of" the alleged prosecutorial misconduct. Allegations of prosecutorial
misconduct without objection at trial are deemed waived unless the misconduct was so
flagrant and ill-intentioned that an instruction could not have cured the resulting
prejudice. Emery, 174 Wn.2d at 760-61. The flagrant and ill-intentioned standard
requires the same strong showing of prejudice required by the test for manifest
constitutional error. State v. '?'Donnell, 142 .wn. App. 314, 328, 174 P.3d 1205 (2007).
The superior court decision did not engage in an analysis of whether the alleged
misconduct was so flagrant and ill-intentioned that rio curative instruction could have
obviated prejudice to the verdict. Without this analysis, the issue should not have been
5
reached. Therefore, the superior court's finding of prosecutorial miscondul?t conflicts
with Ramos, Tortorelli, and Emery.
In addition to the prosecutor's questions during the officer's testimony, the
superior court also specifically cites concern raised by a "comment on the defendant's
presence during the witness's testimony when he had a constitutional right to be there."
During closing arguments in this case, the prosecutor told the jury, "You saw how
painful it was for her to look at that defendant. You saw how much she did not want to
do that." This statement came in the context of the victim's credibility, followed shortly
by the statement that, "the City anticipates that the defendant-Counsel is going to get
up and have you believe that Kelly made all of this up. Do you believe that based on her
demeanor when she testified that she made all of this up?"
Comment on a defendant's presence may constitute a violation. of the
confrontation clause and amount to misconduct. In State v. Jones, 71 Wn. App. 798,
811,863 P.2d 85 (1991), the prosecutor's closing argument alluded to the fact that the
victim's courtroom contact with the defendant had been so traumatic that she could not
return to court. On appeal, this court concluded that this argument "constitute[d] an
impermissible use of constitutionally protected behavior'' by inviting the jury to draw a
negative inference from the valid exercise of the right to confrontation. 1ft. at 812.
However, "not all arguments touching upon a defendant's constitutional rights are
impermissible comments on the exercise of those rights." State v. Gregory, 158 Wn.2d
759, 806, 147 P.3d 1201 (2006). The question becomes whether the prosecutor
"manifestly intended the remarks to be a comment on that right." State v. Crane, 116
Wn.2d 315, 331, 804 P.2d 10 (1991). We believe the superior court's decision to be in
6·
I .
No 69401-4-1/7
conflict with case law holding that so long as the focus of the questioning or argument is
not upon the exercise of the constitutional right itself, the inquiry or argument does not
infringe upon a constitutional right. Gregorv, 158 Wn.2d at 807.
The allegations of prosecutorial misconduct in the closing argument and in the
examination of Officer Nastansky-two of the three errors supporting the superior
court's reversal of the conviction-have possible conflicts with existing case law. We
note that the remaining issue of Officer Nastansky's opinion testimony may also pose
the same problem. The defense did not object to the testimony, thereby failing to
preserve the error. Under City of Seattle v. Heatley, 70 Wn. App. 573,·586, 854 P.2d
658 (1993), testimony that may be an opinion on guilt does not necessarily amount to a
manifest constitutional error that will be considered for the first time on appeal. A four
part test determines whether an issue is reviewable for the fi~t time on appeal.2 ld. at
585~ In the briefing to the superior court, the defendant alleged the constitutional error
and proceeded through a harmless error analysis instead of the required examination of
2 Heatley states,
[nhe proper approach in analyzing alleged constitutional error raised for . the first time on appeal involves four steps. First, the reviewing court must . make a cursory determination as to whether the alleged error in fact suggests a constitutional issue. Second, the court must determine whether the alleged error is manifest. Essential to this determination is a plausible show!ng by the defendant that the asserted error had practical and identifiable consequences in the trial of the case. Third, if the court finds the alleged error to be manifest, then the court must address the merits of the constitutional i.ssue. Finally, if the court determines that an error of constitutional import was committed, then, and only then, the court undertakes a harmless error analysis.
70 Wn. App. at 585, quoting State v. Lynn, 67 Wn. App. 3390, 345, 835 P.2d 251 (1992) ..
7
No 69401-4-118
whether the error was "manifest." The superior court accepted the harmless error
argument and ruled on the issue, citing the improper opinion evidence as one of the
grounds for reversal. From the record, it appears that Nastansky's initial opinion
testimony that Becerra-Arevalo lied to her may not have been "manifest," preventing its
review on appeal. Yet, the superior court made no analysis of manifest error. And,
questions remain as to whether her additional testimony was invited error, provoked by
the defense.
The superior court's reversal of Be~erra-Arevalo's convic~ion presents several
applications of law in possible conflict with existing cases. We grant review as to
prosecutorial misconduct during Officer Nastansky's testimony and in closing
arguments. In the interests of judicial efficiency, we also grant review as to the opinion
testimony of the officer that in combination w.ith the prosecutorial misconduct formed the
basis of the superior court decision.
Now, therefore, it is hereby
ORDERED that the motion for discretionary review is granted. A£, .
Done !his£ day of dr{,.., . 2013.
·~ f J
8
APPENDIXE
RECEIVED FEB 04,2013
KENT LAW DEPrt. 69401-4-I
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DMSIONONE
CITY OF KENT,
Petitioner,
v.
EVERARDO BECERRA-AREVALO,
Respondent.
ANSWER TO MOTION FOR DISCRETIONARY REVIEW
ELAINE L. WINTERS Attorney for Respondent
WASHINGTON APPELLATE PROJECT 1511 Third Avenue, Suite 701
Seattle, Washington 98101 (206) 587-2711
TABLE OF CONTENTS
A. IDENTITY OF ANSWERING PARTY ........................... -.................... 1
B. DECISION BELOW .................. ; .......................................................... 1
C. ISSUES PRESENTED .......................................................................... 2
D. STATEMENT OF THE CASE ............................................................. 3
E. ARGUMENT WHY REVIEW SHOULD BE DENIED ...................... 8
The City cannot demonstrate that the Superior Court utilized the incorrect standard of review in deciding to reverse Mr. Becerra-Arevalo's misdemeanor conviction ..................................................... 8
F. ARGUMENT WHY REVIEW SHOULD BE GRANTED OF ISSUE PRESENTED W ANSWER ..................................................................... 15
If it accepts review, this Court should determine if Mr. BecerraArevalo's constitutional right to effective assistance of trial counsel and/or appellate counsel was. violated ................................. 15
G. CONCLUSION ................................................................................... 20
i
TABLE OF AUTHORITIES
Washington Supreme Court Decisions
In re Pers. Restraint ofMorris, _Wn.2d _, 288 P.3d 1140 (2012) ... 16
In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 66 P.3d 606, cert. denied, 540 U.S. 875 (2003) ................................................................. 14
Statev. A.N.J., 168 Wn.2d 91,225 P.3d 956 (2010) .......................... 15, 16 .....
State v. Belgarde, 110 Wn.2d 504, 755 P.2d 174 (1988) ........................... 9
State v. Carr, 160 Wash. 83, 294 Pac. 1016 (1930) .................................... 8
State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956) ...................................... 9
State v. Charlton, 90 Wn.2d 657, 585 P.2d 142 (1978) .......................... 8, 9
State v. Demery, 144 Wn.2d 753, 30 P.3d 1278 (2001) ........................... 17
State v. Emery, 174 Wn.2d 741, 278 P.3d 653 (2012) ......................... 9, 12
State v. Grier, 171 Wn.2d 17, 224 P.3d 1260 (2011) ............................... 18
Statev.Hager, 171 Wn.2d 151,248P.3d512(2011) .............................. 11
State v. Kirkman, 159 Wn.2d 918, 155 P.3d 125 (2007) .......................... 17
State v. Kyllo, 166 Wn.2d 856, 215 P.3d 177 (2009) ............................... 16
State v. Monday, 171 Wn.2d 667, 257 PJd 551 (2011) ......................... 8, 9
State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984) .................................. 8
Statev. Reichenbach, 153 Wn.2d 126,101 P.3d 80 (2004) ............... 16, 18
ii
Washington Court of Appeals Decisions
State v. Barr, 123 Wn. App. 373, 98 P.3d 518 (2004), rev. denied, 154 Wn.2d 1009 (2005) ............................................................................... 13
State v. Ramos, 164 Wn. App. 327, 263 P.3d 1268 (2011) ................ 12, 13
United States Supreme Court Decisions
Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 2d 1314 (1934) ...................................................................................................... 8
Evitts v. Lucy, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed.2d 821 (1985) .... 16
.Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550,45 L. Ed. 2d 593 (1975) .................................................................................................... 15
Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); ............................................................................................ 16
Roev. Flores-Orteg~ 528 U.S. 470,120 S. Ct. 1029,145 L. Ed. 2d 985 (2000) ............................................................................................. 18
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ....................................................................................... 15, 16
United States v. Cronic, 466 U.S: 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) .............................................................................................. 15
United States Constitution
U.S. Const. aiilend. VI .......................................................................... 2, 15
U.S. Const. aiilend. XIV ................................................................. 2, 15, 17
iii
Washington Constitution
Const. art. I, § 21 .. : .................................................................................... 17
Const. art. I, § 22 ............................................................................. 2, 15, 17
CourtRuies
ER 801 ...................................................................................................... 18
ER 802 ...................................................................................................... 19
ER 803 ...................................................................................................... 19
ER804 ...................................................................................................... 19
RALJ 9.1(h) .............................................................................................. 10
RAP 2.3(d) .......................................................................................... 10, 19
R.PC 3.8 ....................................................................................................... 8
iv
A. IDENTITY OF ANSWERING PARTY
Everardo Becerra-Arevalo, defendant and appellant below, asks
this Court to deny the motion for discretionary review filed by the City of
Kent.
In the alternative, should this Court accept review, Mr. Becerra
Arevalo asks this Court to also address whether he was denied his
constitutional right to effective assistance of counsel at the appellate and
trial levels.
B. DECISION BELOW
Mr. Becerra-Arevalo's Kent Municipal Court conviction for
assault in the fourth degree with sexual motivation was reversed on appeal
by the Honorable Leroy McCullough on September 7, 2012. A copy of
the Decision on RALJ is attached as Appendix A.
The superior court found reversal was required due to prosecutorial
misconduct, specifically the impact on the jury o£(1) a police officer's
opinion concerning the credibility of the defendant, (2) the emphasis both
counsel placed on the officer's belief that the defendant was lying, and (3)
the prosecutor's comment in closing argument on the defendant's exercise
ofhis constitutional right to confront the alleged victim. The superior
court did not reach two other issues raised by the appellant.
1
C. ISSUES PRESENTED
1. On RALJ appeal, the superior court reversed Mr. Becerra
Arevalo's misdemeanor conviction and remanded for a new trial based
upon the impact ofvarious incidents ofprosecutorial misconduct on the
jury. The well-know standard of review for prosecutorial misconduct
cases was cited in the appellate briefs, and the written decision does not
utilize a different standard. Should this Court deny review because the
City of Kent cannot demonstrate that the superior court utilized the wrong
standard of review and thus presents no compelling argument that the
RALJ decision is in conflict with a decision of this Court or the Superior
Court or presents an issue of public importance?
2. Mr. Becerra-Arevalo had the constitutional right to effective
assistance of counsel at trial and on appeal. U.S. Const. amends. VI, XIV;
Const. art. I § 22. His appellate lawyer did not raise ineffective assistance
of counsel on appeal even though trial counsel (1) failed to object when a
police officer offered her opinion that his client was lying, (2) asked
questions on cross-examination that emphasized and strengthened the
officer's opinion of the defendant's credibility and therefore guilt, (3)
failed to object when the prosecutor commented on the defendant's right
to confront witnesses, and (4) failed to object when the officer related the
alleged victim's hearsay account of the incident. If this Court grants the
2
City's motion for discretionary review, should it also address whether Mr.
Becerra-Arevalo's constitutional right to effective assistance of counsel
was violated by his trial counsel's deficient performance? May Mr.
Becerra-Arevalo raise this issue for the first time on discretionary review
because his appellate counsel was. also ineffective for not raising the issue
on appeal?
D. STATEMENT OF THE CASE
Everardo Becerra-Arevalo worked as the maintenance supervisor
for Plemmons Industries, owners of four industrial parks and one shopping
complex in Kent. RP 15, 110-11, 200, 202.1 Kelly Fitzpatrick was the
office manager for one of Plemmons' tenants, Sound Resurfacing, and she
would occasionally speak with Mr. Becerra-Arevalo when he did
maintenance or read the water meter at her office. RP 13, 15-16. Ms.
Fitzpatrick found Mr. Becerra-Arevalo to be polite and friendly, and the
two went to lunch one day. RP 17-20.
According to Ms. Fitzpatrick, Mr. Becerra-Arevalo touched her
breasts and tried to kiss when they were alone in her office on October 27,
2009. RP 20-22. Ms. Fitzpatrick reported the incident to the police on
November 12 because she did not believe her employer had adequately
addressed the problem. RP 29-30,50-51. Mr. Becerra-Arevalo denied
1 A copy of the verbatim report of proceedings prepared for the superior court is attached as Appendix D.
3
touching Mr. Fitzpatrick when interviewed by Kent Police Officer Carrie
Nastansky. RP 50, 63. The City of Kent charged him with fourth degree
assault with sexual motivation, and he was convicted after a jury trial in
Kent Municipal Court. RP 299.
On appeal to King County Superior Court, Mr. Becerra-Arevalo's
conviction was reversed and remanded for a new trial by the Honorable
Leroy McCullough. Appendix A. The superior court ruled that Mr.
Becerra-Arevalo did not receive a fair trial due to the impact upon the jury
of the police officer's testimony concerning the defendant's credibility, the
testimony elicited by both counsel that the officer believed the defendant
was lying when he denied the offense, and the city attomey's comment
during closing argument conceming the defendant's constitutional right
confront witnesses. Appendix A.
At issue was Officer Nastansky's trial testimony conceming Mr.
Becerra-Arevalo's credibility and guilt? When asked by the city attomey
what Mr. Becerra-Arevalo told her about the incident, Officer Nastansky
responded that he was very cautious about what he said:
The conversation, from what I remember, was kind of odd because it was- I don't want to say he was trying to hide something. He was very careful about what he said and how he answered questions. He told me he's only there to
2 The City conceded the officer's testimony was improper, but argued defense counsel did not timely object and elicited some of the testimony on cross-examination, thus inviting the misconduct. Appendix Cat 8-10.
4
work. He never talks to females, just that he comes in and says hi, and then he leaves and goes back to work.
RP 56. Over objection the prosecutor was then permitted to ask the officer
why she believed Mr. Becerra-Arevalo was being careful in responding to
her questions. RP 56-57.
RP 57.
Q: Why did you have that opinion?
A: Because he was slow to answer as if he were trying to come up with a story in his head versus just if something had happened you would be able to freely tell the story and you wouldn't have to think about it. There would be no like okay, well did this happen and then this. You just say what happened, nothing to hide.
Q: Any did you get that perception here?
A: No. He was -it seemed to me that he was trying to hide something.
On cross-examination, the officer testified that only Mr. Becerra-
Arevalo's answers concerning his relationship with other women at work
were slow or guarded. RP 63. On re-direct, the prosecutor asked if the
defendant's answers were also guarded conceming Ms. Fitzpatrick's
allegations. RP 66. Officer Nastansky replied that not only was Mr.
Becerra-Arevalo guarded as to the incident, he also lied to her:
And he lied to me as also. He told me he didn't know why I was there, although he had already been contacted by the property manager, so you would assume he would know why I was there.
5
Defense counsel attempted to question the officer to discount her
opinion that Mr. Becerra-Arevalo was lying. The officer, however,
claimed that she was a very good judge of when people were lying and
reiterated that Mr. Becerra-Arevalo lied to her. RP 71-73.
The prosecutor then asked the officer to again confirm that she
believed Mr. BeceiTa-Arevalo was lying to her. RP 74. Over defense
objection, Officer Nastansky explained the basis of her opinion:
Because he- just the way that he kind of- when you're asked a certain question and then you answer part of it, but you don't answer the full part of if, you're really kind of choppy on what the answers are, very careful knowing that there's a police officer in front of you, you're very careful to [sic] how you answer it. Like I said before, ifhe didn't have anything to hide he would have told me, you know, this, this, and this happened and yes, I was in that room at that time, but I never touched her. But he didn't answer it. He didn't go into detail whatsoever. And then I offered a taped statement. ...
RP 74-75. The prosecutor ended her examination by asking the officer to
con:finn that her opinion that Mr. Becerra-Arevalo lied about the incident
was based upon her "entire investigation and all of the infonnation she
obtained" during the investigation. RP 75. Finally, defense counsel
brought out the officer's opinion that guilty people are always guarded
6
when responding to police interrogation, but innocent people generally are
not. RP 77.
In closing argument, the city attorney urged the jury to discount
Mr. Becerra-Arevalo's testimony based upon Officer Nastansky's expert
opinion that Mr. Becena-Arevalo's responses to her questions indicated he
was guilty. RP 296-97.
TI1e RALJ court's determination that Mr. Becerra-Arevalo's
conviction be reversed due to prosecutorial misconduct was also based
upon the city attorney's comment in closing argument on the defendant's
constitutional rights to confront the witnesses against him:
But now Kelly, you saw how difficult it was for her to testify. You saw how painful it was for her to look at that defendant. You saw how much she did not want to do that. You saw how uncomfortable she was to be in this environment ... Kelly just wanted it to go away because she didn't want to have any contact with the defendant.
RP 271-72 (emphasis added); Appendix Bat 18-20.3 The City argued this
was proper argument addressing the witness's credibility. Appendix Cat
15-16
3 A copy of the Brief of Appellant is attached as Appendix B, and a copy of the Respondent's Brief is attached as Appendix C.
7
(
E. ARGUMENT WHY REVIEW SHOULD BE DENIED
The City cannot demonstrate that the Superior Court utilized the incorrect standard of review in deciding to reverse Mr. Becerra-Arevalo's misdemeanor conviction.
The City asks this Court to accept discretionary review of the
RALJ decision, claiming it conflicts with decisions of this Court and the
Washington Supreme Court setting forth the standard of review of
prosecutorial misconduct claims. The parties briefed the correct standard
of review in the superior court, and the RALJ Decision does not reflect
that any other standard was utilized by the court. The City's motion
should be denied.
A prosecutor plays a unique role in the criminal justice system that
requires her to act impartially and seek a just verdict based upon matters in
the record. Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L.
Ed. 2d 1314 (1934); State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551
(20 11) (the prosecutor owes a "duty to defendants to see that their rights to
a constitutionally fair trial are not violated"); RPC 3.8. Washington courts
have long emphasized that a prosecutor's misconduct may violate the
defendant's right to due process and a fair trial. State v. Reed, 102 Wn.2d
140, 146-49, 684 P.2d 699 (1984) (and cases cited therein); State v.
Charlton, 90 Wn.2d 657, 664-65, 585 P.2d 142 (1978); State v. Carr, 160
Wash. 83, 90-91, 294 Pac. 1016 (1930).
8
The well-known standard of review for prosecutorial misconduct
requires the reviewing court to detennine if the prosecutor's conduct was
improper and, if so, whether there is a substantial likelihood the
misconduct affected the jury verdict.4 State v. Emery, 174 Wn.2d 741,
756-59, 760, 278 P .3d 653 (2012); Monday, 171 Wn.2d at 675-76; State v.
Belgarde, 110 Wn.2d 504, 508, 755 P .2d 174 (1988). If, however, the
defendant did not object to the misconduct, the reviewing court detennines
whether the conduct was so flagrant and ill-intentioned that the resulting
prejudice would not have been cured by a limiting instruction. Emery,
174 Wn.2d at 760-61; Belgarde, 110 Wn.2d at 508; Charlton, 90 Wn.2d at
661; State v. Case, 49 Wn.2d 66,72-74,298 P.2d 500 (1956).
The City contends that Judge McCullough did not utilize this
standard of review. There is nothing to support this claim, however, as the
RALJ Decision does not reference a different standard of review. The
City addressed the correct standard of review in its appellate brief, and the
appellant provided the court with the standard utilized when the defense
does not object to prosecutorial misconduct. Appendix Bat 7; Appendix
C at 6. The City argued the appeal on the date the RALJ decision was
entered and approved the Decision "as to form." Appendix A. The City
4 Monday's exception for cases where the prosecutor commits egregious racial misconduct is not at issue here. Monday, 171 Wn.2d at 680 (applying constitutional harmless error test).
9
could easily have suggested an additional sentence be added to the brief
opinion to reflect what standard of review the superior court utilized or
provided this Court with a copy of the court's oral ruling.
The City does not have a right to review in this Court; review is
discretionary. RALJ 9.1(h); RAP 2.3(d). Discretionary review of an
RALJ decision is accepted only if (1) the decision is in conflict with a
decision of this Court or the Supreme Court, (2) the decision raises a
significant question oflaw l.inder the state or federal constitution, (3) it
addresses a matter of significant public importance, or ( 4) the superior
court has so far departed from the accepted and usual course of judicial
proceedings or so far sanctioned such a departure by the court of limited
jurisdiction, that review is warranted. RAP 2.3(d). The City does not
demonstrate that the RALJ decision meets any of these criteria. Instead,
the City attempts to manufacture an issue by claiming the superior court
did not use the correct standard of review and that the decision is therefore
in conflict with appellate cases where the standard of review is utilized or
discussed. The City, however, cannot point to any language in the RALJ
decision that demonstrates that Judge McCullough did not utilize the
correct standard of review.
Thus, the City's argument that the RALJ decision is in conflict
with decisions of this Court and the Washington Supreme Court is
10
meritless. The City first claims the RALJ Decision conflicts with Emery,
supr!!, because McCullough ignored the standard of review utilized in that
case. Motion at 11-16. The City suggests that, if Judge McCullough had
used the correct standard of review, he would have determined the police
officer's testimony was not prejudicial because the jury could have
concluded her testimony simply described Mr. Becerra-Arevalo's
demeanor. Motion at 13 (citing State v. Hager, 171 Wn.2d 151, 160-61,
248 P.3d 512 (2011)). In Hager, the trial court prevented a detective from
testifying as to whether or not the defendant was truthful, but the detective
nonetheless violated an in limine ruling and testified that the defendant
was "evasive," thus unconstitutionally commenting on his credibility.
Hager, 171 Wn.2d at 158. The court, however, found the prejudicial
remark was cured by the court's prompt instruction. Id. at 160.
Not every prejudicial remark, however, is susceptible to a curative
instruction. Id. The jury could not confuse Officer N astansky' s remarks
with a description of Mr. Becerra-Arevalo's "demeanor." Officer
Nastansky expressed her strong opinion that Mr. Becerra-Arevalo was
lying when he denied committing the crime, thus offering her improper
opinion on both his credibility and his guilt. Officer Nastansky initially
told the jury that Mr. Becerra-Arevalo was "slow to answer [her questions]
as ifhe were trying to come up with a story in his head." RP 57. She
11
added that "he lied to me also" when he indicated he did not know why
the officer was there to interview him. RP 66. She later explained she felt
Mr. Becerra-Arevalo was lying throughout the interview because of his
"choppy'' answers and failure to "go into detail." RP 74-75. Finally, the
prosecutor elicited testimony that the officer's opinion that the defendant
was lying was based upon her "entire investigation and all of the
information she obtained." RP 75.
Any rational juror would see the officer was offering her opinion
that Mr. Becerra-Arevalo was lying when he denied the offense and
therefore guilty. No instruction could erase that impression. The RALJ
decision hardly conflicts with Emery because the misconduct was so
flagrant and ill-intentioned that no curative instruction could remove the
prejudice from the minds of the jury, thus preventing a fair trial. See
Emery, 174 Wn.2d at 753.
The City's claim that the RALJ Decision is in conflict with State v.
Ramos, 164 Wn. App. 327,263 P.3d 1268 (2011), because the
prosecutor's misconduct was provoked by the defense also fails. Motion
at 16-17. The City argued strenuously in the superior court that it was the
defense who initially elicited the damaging testimony, and there is no
reason to conclude Judge McCullough did not consider the City's
argument in rendering his decision. Appendix C at 7-1 0.
12
Moreover, the City does not explain why the RALJ decision
conflicts with Ramos. Motion at 16-17. The Ramos Court reversed the
defendant's delivery of cocaine conviction based upon several instances of
prosecutorial misconduct in cross-examination and closing argument.
Ramos, 164 Wn. App. at 342-43. The State did not argue that any of the
misconduct discussed was invited or provoked by the defense, and the
opinion thus does not address this. Id. at 333-41. The RALJ decision
noes not conflict with Ramos.
Ramos in fact supports Judge McCullough's decision, as it clarifies
that it is misconduct for the prosecutor to ask a witness if another witness
is lying. Ramos, 164 Wn. App. at 334-35. While the case was not
reversed because the question was not so flagrant and ill-intentioned that a
jury instruction could not have cured the prejudice, that is not the case
here. Witness credibility was the key decision for the jury in Mr. Becerra
Arevalo's case, and the opinion testimony elicited by the City meets the
flagrant and ill-intentioned test. See State v. Barr, 123 Wn. App. 373,
381-85, 98 P.3d 518 (2004) (conviction reversed where detective's
testimony that the defendant's behavior during interrogation indicated he
was being deceptive was "clearly designed to give the officer's opinion as
to whether Mr. Barr had committed the offense"), rev. denied, 154 Wn.2d
1009 (2005).
13
The City also claims Judge McCullough's decision is in conflict
with the discussion of invited error in In re Pers. Restraint of Tortorelli,
149 Wn.2d 82, 94, 66 P.3d 606, cert. denied, 540 U.S. 875 (2003).
Motion at 17-18. The City argued invited error on appeal and cannot point
to any language in the RALJ decision that shows Judge McCullough did
not properly consider tlli.s argument. Appendix C at 9-10.
The RALJ decision is not in conflict with Tortorelli. In his
personal restraint petition, Tortorelli argued a statute admitted into
evidence created an unconstitutional irrebutable presumption. Tortorelli,
149 Wn.2d at 94. The Supreme Court refused to address the issue because
his trial counsel had insisted the entire statute be admitted as evidence at
trial and used it to argue the defense of good faith claim of title. Id. at 94,
96. Mr. Becerra-Arevalo's attorney, in contrast, tried to limit the damage
caused by Officer N astansky on cross-examination by pointing out that
she had no personal knowledge of the events. He was unsuccessful,
however, as the witness instead became even more insistent that she was
an accurate judge of who was and was not lying. RP 68, 70-71. The
defense gained nothing from the cross-examination, and defense counsel's
failure to stop the line of inquiry with a timely objection was not a planned
strategy to set up an error for appeal.
14
This Court should deny the City's motion for discretionary review
because there is nothing in the RALJ decision to support the City's claim
that the decision is in conflict with Emery, Ramos, or Tortorelli or that the
case involves an important public issue.
F. ARGUMENT WHY REVIEW SHOULD BE GRANTED OF ISSUE PRESENTED IN ANSWER
If it accepts review, this Court should determine if Mr. Becerra-Arevalo's constitutional right to effective assistance of trial counsel and/or appellate counsel was violated.
A criminal defendant has the constitutional right to the assistance
of counsel. U.S. Canst. amends. VI, XIV; Canst. art. I, § 22; State v.
A.N.J., 168 Wn.2d 91, 96-97, 225 P.3d 956 (2010). Counsel's critical role
in the adversarial system protects the defendant's fundamental right to a
fair trial. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648,
656, 104 S. Ct. 2039,80 L. Ed. 2d 657 (1984). "The very premise of our
adversary system of criminal justice is that partisan advocacy on both
sides of a case will best promote the ultimate objective that the guilty be
convicted and the innocent go free." Cronic, 488 U.S. at 655 (quoting
Herring v. New York, 422 U.S. 853, 862,95 S. Ct. 2550,45 L. Ed. 2d 593
(1975)). The right to counsel therefore necessarily includes the right to
effective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365,
15
377, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); A.N.J., 168 Wn.2d at 98.
The right to effective assistance of counsel applies to appellate counsel.
Evitts v. Lucy, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed.2d 821
(1985); In re Pers. Restraint of Morris, _ Wn.2d _, 288 P .3d 1140,
1144 (2012). "A claim of ineffective assistance of counsel is an issue of
constitutional magnitude that may be considered for the first time on
appeal." State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
When reviewing a claim that counsel was not effective, the
appellate court must determine (1) whether the attorney's performance fell
below objective standards of reasonable representation, and, if so, (2) did
counsel's deficient perfonnance prejudice the defendant. Strickland, 466
U.S. at 687-88; Morris, 288 P.3d at 1144. While the appellate courts
presume that defense counsel was not deficient, this presumption is
rebutted if there is no possible tactical explanation for counsel's
performance. Strickland, 466 U.S. at 689-90; Morris, 288 P.3d at 1145;
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). The
appellate court will find prejudice under the second prong if the defendant
demonstrates "counsel's errors were so serious as to deprive the defendant
of a fair trial." Strickland, 466 U.S. at 687.
Mr. Becerra-Arevalo's appellate counsel argued that his conviction
should be reversed due to prosecutorial misconduct and because his
16
constitutional right to a fair trial was violated by the admission of Officer
Nastansky's opinion on his guilt. Appendix Bat 20-21. Trial counsel,
however, did not object to much of the purported misconduct, RP 56-57,
66, 74-75, and his cross-examination contributed to the problem, RP 56-
57, 70-71, 77. Trial counsel did not appear to be aware that Officer
Nastansky's testimony was an improper opinion on his client's guilt. RP
56-57, 66, 74-75. Defense counsel also failed to object when the police
officer related hearsay testimony of her conversations with Ms. Fitzpatrick
and others. RP 52-53, 55, 60. And he did not object when the prosecutor
cmmnented upon the defendant's right to confront witnesses. RP 271-72.
Yet Mr. Becerra-Arevalo's appellate attorney did not argue that defense
counsel was ineffective. 5
The defendant's constitutional right to a jury trial is violated if a
witness expresses her opinion about the defendant's guilt or credibility
U.S. Canst. amend. XIV; Canst. art. I§§ 21, 22; State v. Kirkman, 159
Wn.2d 918, 826-27, 155 P.3d 125 (2007); State v. Demery, 144 Wn.2d
753, 759, 30 P.3d 1278 (2001). The police officer's testimony that Mr.
Becerra-Arevalo lied when he denied committing the crime directly told
the jury that the officer believed Mr. Becerra-Arevalo was guilty.
5 Mr. Becerra-Arevalo was represented by attorneys from the same law finn at trial and on appeal.
17
Competent counsel would have immediately objected to this type of
testimony and would not have posed cross-examination questions that
emboldened the city attorney to introduce even more dan1aging opinion
testimony.
Even if defense counsel's decision to bring out Officer
Nastansky's opinion that his client was lying was in some way tactical, it
was not a reasonable tactical decision. Not all tactical decisions are
immune from attack. State v. Grier, 171 Wn.2d 17, 33-34, 224 P.3d 1260
(2011); Reichenbach, 153 Wn.2d at 130. "The relevant question is not
whether counsel's choices were strategic, but whether they were
reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029,
145 L. Ed. 2d 985 (2000).
Additionally, defense counsel did not object when the police
officer related her hearsay conversations with Ms. Fitzpatrick, thus
bolstering Ms. Fitzpatrick's testimony, and offered her opinion that Ms.
Fitzpatrick was still upset from the incident that allegedly occurred over
two weeks earlier. Hearsay is defined as "a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." ER 801(c). Hearsay is
not admissible, and no exception to the hearsay rule permits Officer
Nastansky's testimony concerning what Ms. Fitzpatrick told her about the
18
incident. ER 802, 803, 804(b). Criminal defense attorneys are expected to
have a basic understanding of the hearsay rule and to pose objections on
that basis.
There are certainly times when a lawyer may decide an objection
would draw the jury's attention to prejudicial evidence that is mentioned
indirectly or in a fleeting comment. This is not the type of decision made
by trial counsel here. Trial counsel permitted a police officer to directly
testify tl1at she believed Mr. Becerra-Arevalo was lying when he denied
committing the crime- a direct opinion that he was guilty. Mr. Becerra
Arevalo was prejudiced by his lawyer's deficient performance, and this
Court should accept review of this important constitutional issue. RAP
2.3(d)(2).
19
G. CONCLUSION
Mr. Becena-Arevalo asks this Court to deny the City's motion for
discretionary review. There is nothing in the wording of the RALJ
decision to support the City's argument that Judge McCullough did not
utilize the conect standard of review.
If this Court grants the City's motion, this Court should also grant
review to determine if Mr. Becena-Arevalo's constitutional right to
effective assistance of counsel was violated by his trial and appellate
attorneys.
DATED this 1st day of February 2013.
Respectfully submitted,
Elaine L. Winters- WSBA #7780 Washington Appellate Project Attorneys for Respondent
20
APPENDIXF
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2
3
4 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION I
5 CITY OF KENT,
6 vs.
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Respondent,
EVERARDO BECERRA-AREVALO 1
8 Appellant.
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) ) ) ) ) ) ) )
No. 69401-4-I
NOTICE OF FILING VERBATIM REPORT OF PROCEEDINGS (RAP 9 .5)
DECLARATION 10
I, Jo L. Jackson, transcriber, mailed for filing the original ·11 of the verbatim report of proceedings on July 9 2013 for the following
dates and provided (as per the Court's instructions). (Please identify 12 each volume, if more than one volume is filed.) 9/7/12 hearing.
13 The transcript was computer generated and I filed a copy of the ASCII diskette or compact disk on the same date as th~ transcript was filed and
14 provided a copy to the party who arranged for transcription.
15 CERTIFICATE OF SERVICE
16 I certify that on the gth day of July 2013, I caused a true and correct copy of this Notice to be served on the following, in the manner
17 indicated below:
18 Tammy Larson White via· email [email protected]
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20 Elaine L. Winters via email.
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CITY
Court of Appeals, Division I No. 694014
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY
OF KENT, ) Appellant, ) No. ~2-~-0~212-8 KNT
) )
v. ) )
EVERARDO BECERRA-AREVALO, ) Respondent. )
THE HONORABLE LEROY McCULLOUGH MOTION FOR REMAND
(Pages 1 - 34)
15 APPEARANCES :
16 FOR THE APPELLANT: 17
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19 FOR THE RESPONDENT: 20
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TAMMY L. WHITE City of Kent 220 - 4th Avenue South Kent, WA 98032
ANDREA L. BEALL Stewart Beall MacNichols &
Harmell, Inc., PS 655 West Smith Street, #210 Kent, WA 98032
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f.EJCOPY
Friday, September 7, 2012 at 1:39 p.m.
2 CLERK: All rise.
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THE COURT: Thank you. You may be seated. 4
5 Good afternoon.
6 MS. BEALL: Good afternoon, Your Honor.
7 THE COURT: Alright. Someone call the case.
8 MS. BEALL: Your Honor, this is an appeal in The City
9 of Kent versus Everardo Becerra-Aravalo, cause number 12-1-
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11 01212-8 K-N-T. And, Your Honor, for the record, I am
12 Andrea Beall, representing the appellant, Mr. Becerra-
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MS. WHITE: And, Your Honor, I am Tammy Larson White,
representing the City of Kent.
THE COURT: Okay. Is that Larson?
MS. WHITE: Larson White.
THE COURT: Larson White. And Ms. Beall. Okay.
Alright. I've read your respective briefs. I
did not get a DVD or an audio of the proceeding, but I do
have the transcript and your references to that.
MS. BEALL: Okay.
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THE COURT: So, with that, if you both are ready to
proceed, Ms. Beall, we'll start with you.
MS. BEALL: Okay. Thank you, Your Honor.
As the Court is aware, we have three separate
issues that we're raising in this appeal, and our first,
and we believe most persuasive, is that there is an issue
of prosecutorial misconduct, and that that arose in three
different ways during the course of this trial. The first
was in the Prosecutor's elicitation of opinion testimony
from the police officer as to the credibility of the
Defendant.
As I noted in our brief, police do have a special
aura of reliability, and when they offer an opinion as to a
witness's credibility, that carries a certain weight with
the jury, and this is particularly important where the
credibility is offered as to the opinion of the Defendant,
and the case is essentially a he-said-she (skip in
recording) there are no other eyewitnesses; it's the
alleged victim came in and told her story, and then the
Defendant contradicted that and denied the accusations.
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And in this case our position is the question (skip in
2 recording) here was pervasive. The City's brief attempts
3 to shift the blame to defense Counsel, but it did arise in
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5 the course of the City's initial direct examination of the
6 officer, and that's on page 56, and the (skip in recording)
7 it wasn't necessarily that the City at that point intended
8 to elicit a comment on the credibility (skip in recording)
9 essentially offered up her opinion on the Defendant's
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11 credibility, a statement, nHe was careful in the way that
12 he testified," and then it was asked, nwell, how he was he
13 careful," and then the officer is allowed to expand on
14 that, and it's as though he was trying to hide something
15 THE COURT: Uh-huh (affirmative).
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17 MS. BEALL: -- as though -- he was speaking as though
18 he was making something up rather than just telling a
19 story. The defense did object at that point, and we would
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acknowledge that the objection was couched in terms of
speculation, not eliciting an opinion on the credibility,
but there was an objection in the record at that point in
time.
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Our most concerning part of the cross examination
2 came later on re-direct of the officer, and that's at page
3 74, when the Prosecutor directly asked the officer, "Why
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5 was it that you felt the Defendant was lying to you," and
6 there again is an objection from the defense Counsel.
7 THE COURT: Uh-huh (affirmative).
8 MS. BEALL: The questions asked to be -- are allowed
9 to be asked. I think at that point there was a sidebar.
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11 Unfortunately in this case, the sidebars did not tend to
12 make it into the record in terms of what was said and what
13 was discussed at sidebar. But the officer was allowed to
14 explain why she felt the Defendant was lying, and it was
15 asked twice, 1'Why was it, given your entire investigation,
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17 the specific information, the statement from the Defendant
18 made to you that you felt was a lie?" There was objection.
~ Again, "You felt the Defendant was lying to you? You faced
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that on your entire investigation, all the information,"
and the officer is allowed to tell the jury that she
believed when the Defendant denied the accusations, he was
lying about that.
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The second issue is --
THE COURT: Before you leave that one --
MS. BEALL: Yes?
THE COURT: of what effect is the fact that the
defense lawyer sort of, according to the City's response,
compounded that by continuing to raise that issue and con-
tinuing to use the very phrase, does that have any effect?
MS. BEALL: Well, I think we need to break it up, and
there's first the original (skip in recording) and that's
where the statement of the officer was that he was careful,
that he was seeming as though
THE COURT: Got it.
MS. BEALL: -- he was attempting to hide something.
Defense Counsel at that point does cross examine the
officer and try to narrow her -- he uses the term guarded
instead of careful, but narrow her opinion in terms of what
exactly the Defendant was talk~ng when he appeared, in his
words, guarded, and the officer's words, careful. So in
the first cross examination, it is an attempt by the
officer -- or by the defense attorney to narrow the
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officer's testimony and to show the jury that she didn't
2 necessarily believe he was lying about the denial, but that
3 he was careful in his answers about how he interacted with
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5 other women on the property.·
6 Then, on re-direct, the Prosecutor again brings
7 up the issue regarding the officer's testimony that he
8 appeared careful and ... And I think it's during the course
9 of that that the officer sort of blurts out, uwell, and
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11 then he lied to me, too." And, then, the -- So, then, the
12 defense Counsel could've at that point made an objection,
13 asked for a limiting instruction to the jury or asked the
14 statement to be stricken and the jury instructed, but the
15 eat's already out of the bag and, as experienced trial
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17 counsel know, even though a jury's told to disregard a
18 statement, uThe Defendant was lying," that's still going to
19 be in the back of their minds. So, rather than doing that,
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the tactic was to, again, try to elicit exactly what the
officer was referencing. Rather than allow it to be as
applied to his whole denial, he tries again to narrow it,
uwell, isn't it that maybe because you came at it with the
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perspective that he was already guilty you thought he was
careful?" So it was a trial tactic I think --
THE COURT: The question, "So what about that state-
ment is a lie?" "You said he lied to you. That's (skip in
recording) by an officer, wouldn't you agree? "You
classify this as a lie. You specifically said it was a
lie," and this is from Respondent's brief, page (skip in
recording) note 2.
MS. BEALL: Yes.
THE COURT: And referring to Report of Proceedings,
pages 68 through 71 or 72.
MS. BEALL: Thank you.
THE COURT: Just wondering if -- what the legal effect
of that is, in your opinion? And we can come back to that
on your rebuttal, if you like.
MS; BEALL: Okay. I, I guess my initial response
would be that we're still talking about prosecutorial mis-
conduct --
THE COURT: Uh-huh (affirmative).
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MS. BEALL: -- and we're still talking about what
2 questions are appropriate from the Prosecutor.
3 THE COURT: Uh-huh (affirmative).
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5 MS. BEALL: And the Prosecutor could've left that
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THE COURT: Uh-huh (affirmative).
MS. BEALL: -- but chose not to --
THE COURT: Got that part.
MS. BEALL: -- and then he comes back in page 74 and
asks, very directly, as I said before, "Why was it that you
felt that he was lying to you," and is allowed to expound
on that, and that's over the defense objections at that
point --
THE COURT: Yes.
MS. BEALL: -- and that's over a sidebar.
THE COURT: Yes.
Alright.
MS. BEALL: And the second
THE COURT: Go ahead.
MS. BEALL: Alright.
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The second issue, then, is the questioning of the
Defendant by the Prosecutor, and then our position, trying
to use impeachment to really bring out what is essentially
substantive evidence that was not raised in the City's case
in chief, and that was the question as to whether or not
the Defendant told another individual that he hugged and
kissed Ms. Fitzpatrick. And that testimony takes place in
pages 133 and 134 of the transcript. And it's our position
that the question, "On November 12th, after the officer had
arrived and talked with you, did you tell Theresa Hutchins
(phonetic) that, yes, you did kiss and hug Kelly
Fitzpatrick," implies that he admitted to the assault, that
the assault is one of sexual motivation, the allegation is
that he grabbed Ms. Fitzpatrick's breasts on October 27th is
the offense date (sic) .
The Prosecutor admits that it's an attempt to
impeach the Defendant in their (skip in recording) response
brief they state that they asked this question for the
purpose of setting up a future impeachment, but our posi-
tion would be it's impeachment on a collateral issue, at
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best, but really it's an introduction of substantive
2 evidence that was not introduced in their case in chief,
3 they (skip in recording) Hutchins testify to the admissions
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5 that Mr. Becerra said to her, or allegedly said to her when
6 she interviewed Mr. Becerra about Ms. Fitzpatrick's
7 allegations, they didn't bring Ms. Hutchins in in their
8 case in chief. When Mr. Becerra testifies, they certainly
9 can ask him questions to set up impeachment, we agree that
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11 that's the appropriate process, but not on collateral
12 issues, and this would be a collateral issue. This would
13 be something that he said regarding a totally separate
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incident. From the City's information in their brief, they
knew, based upon the notes, that it was a separate
incident, that was talking about the time that they went
lunch, not the time that there's this alleged accusation,
yet the question is said in such a way that it implies that
he made an admission as to the substance of the allegation,
that he admitted to touching Ms. Hutchins (sic) in an
unwanted way on October 27th, not that he was referring to a
prior lunch, and she doesn't distinguish that in the cross
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examination of Mr. Bacerra. She says twice, 110n November
12th, after the officer arrived and talked with you, did you
tell Theresa Hutchins that, yes, you did and kiss (sic)
Kelly -- or Kelly Fitzpatrick?" The defense objects, the
Judge allows her to ask the question, she again phrases the
question the exact same way.
And, so, our position would be that it's impeach-
ment on a collateral issue, number one, and, number two,
that it's really an introduction of substantive evidence
that probably would not have been admitted had it been
brought forward in the case in chief because it, again,
it's on a collateral issue (sic), it brings into question
whether or not a prior bad act is being alleged, based upon
behavior at a lunch that's unrelated to the assault on
October 27th, and that it's an improper question.
And, then, I would also note that it's signify-
cant in that in closing the Prosecutor, again, did refer to
that statement, on page 271 of her closing said, 11The
Defendant is not credible because he denied the kissing and
hugging." So it is again brought back in closing and it's
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-- it wasn't substance evidence (sic) and it was impeach-
2 ment on a collateral issue and it should not have been
3 brought into evidence at all.
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5 Our third issue with regard to prosecutorial
6 misconduct is the City commenting on the Defendant being
7 present while the adverse witness testified. And our
8 position with that would be that that's a comment on the
9 Defendant's right to be present and to confront his
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11 accusers at the time of trial, and that the City's refer-
12 ence to that in closing suggests that he should not have
13 exercised that right, that he put Ms. Fitzpatrick in an
14 awkward situation by requiring her to come forward and
15 testify and tell about this incident in front of strangers
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17 and in front of him, and didn't that make her uncomfor-
18 table. That would be a comment on his ability to do that,
19 his Constitutional right to do and his Constitutional right
20 to confront his accuser.
21 So our position would be that the accumulation of
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23 those three incidents are significant. They are particu-
~ larly significant in this case because, as I said before,
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it's a he-said-she-said. It's Ms. Fitzpatrick stating,
2 ''This is what happened on this date," and Mr. Bacerra-
3 Arevalo saying, ui didn't touch her," and that's the only
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5 evidence that there is. It's not a case where there (skip
6 in recording) there's nothing to corroborate Ms.
7 Fitzpatrick's statement, and Mr. Bacerra is flatly denying
8 it. So in a case where credibility is so important, these
9 issues are important, as well, and, in our opinion, did
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11 affect the verdict and would have affected the verdict and
12 that reversal was appropriate, based upon prosecutorial
13 misconduct.
14 If the Court does not agree, then I've also
15 briefed those two -- the last two issues in terms of the
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17 Constitutional (skip in recording) apart from prosecutorial
18 misconduct, and I'm sure Your Honor has reviewed the brief
19 and I won't expound on that further, unless you have
20 questions.
21 THE COURT: What are you asking me to do, then?
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23 MS. BEALL: I'm asking you to reverse, first based
24 upon prosecutorial misconduct. If you don't agree that the
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cumulative actions of the Prosecutor require reversal,
2 then, second, we'd ask to reverse on (skip in recording) of
3 the opinion evidence because that did invade the province
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5 of the jury because it was a comment on the Defendant's
6 guilt in terms of what the officer believed in terms of his
7 denial, whether or not his denial was genuine or not, and
8 that that took that away from the jury because of the
9 credibility that is afforded officers. And, third, we're
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11 asking to reverse based upon the rebuttal evidence that was
12 not truly rebuttal evidence.
13 THE COURT: Send it back for retrial or just what?
14 What are you asking me to do?
15 MS. BEALL: Retrial.
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17 THE COURT: Reverse and remand?
18 MS. BEALL: Yes.
19 THE COURT: And you will have an opportunity for
20 rebuttal, but I'm curious, on your last one --
21 MS. BEALL: Yes.
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23 THE COURT: -- regarding the comment on the (skip in
24 recording) being present, I can anticipate, based on the
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City's response, that they're saying that they have the
right to explain why a person has a certain kind of
physiological or other reaction as they're testifying.
What's your response to that? They're saying that they
were not making a comment about the Defendant's being
present; they're just saying that they were trying to put
in (skip in recording) why this person's presentation
might've been as it was. What's, what's your response to
that?
MS. BEALL: My response is that the City could've
argued, urf this is a touchy subject, if it's a sensitive
subject, certainly it would be difficult for Ms.
Fitzpatrick to talk about that subject," but what the City
said was, uYou saw how difficult it was for her to testify.
You saw how painful it was for her to look at the Defen-
dant. You saw how much she did not want to do that. You
saw how comfortable she was (sic) to be in this environ-
ment." So it's all about the fact that she's on the
witness stand and the Defendant is in th~ same room, and
that was the focus of the City's argument; it wasn't just
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that is a sensitive subject, this is difficult to talk
2 about, and that could account for any demeanor that the
3 jury observed in her, it was all about her being in Court
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5 testifying with the Defendant was present.
6 THE COURT: Thank you very much.
7 Ms. Larson White?
8 MS. WHITE: Thank you, Your Honor.
9 And, Your Honor, (skip in recording) to the chase
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11 on the prosecutorial misconduct part, particularly about
12 soliciting an improper opinion, you were asking what the
13 legal effect was of defense Counsel going into the further
14 questioning about, "He lied to you. What was it that he
15 lied to you about?" And I apologize that this was not in
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17 my brief, it was not a case I found until recently, but
18 it's State v. Ramos, which is 164 Wn. App. 327 (2011). It
19 says there that, "Any improper remarks by a prosecutor are
20 not grounds for reversal if invited or provoked by defense
21 counsel, unless the remarks are not a pertinent reply or
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23 are so prejudicial that a curative instruction would be
~ ineffective." That's the legal effect here. Was it wrong
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for the officer to blurt out that, uHe lied to me?"
2 Absolutely. (skip in recording) that the Prosecutor asked
3 solicit that response? Absolutely not. The Prosecutor was
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5 not seeking that response from the officer, it was some-
6 thing that the officer blurted out, the Prosecutor quickly
7 moved on, did not touch that subject and left it alone.
8 However, when defense Counsel got up and was addressing the
9 officer on cross, then all of that information carne out.
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11 It was a trial strategy, as Ms. Beall just stated
12 in her argument, that Counsel could have moved to strike
13 the statement, get a curative instruction, or even move for
14 a mistrial at that time, but they made the trial strategy
15 not to do that. By doing so, under State v. Emery, they've
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17 now put themselves in a heightened standard of review for
18 Your Honor to review in determining whether or not miscon-
19 duct occurred. Because they did not object, they didn't
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give the Court an opportunity to try to correct any sort of
error, and a curative instruction here certainly could've
corrected that one statement from the officer, nAnd he lied
to me, too," but they didn't give the trial Judge the
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opportunity to do that. Because they didn't do that, they
2 cannot meet the burden here, and should not be, I guess,
3 granted their appeal to reverse on the prosecutorial mis-
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5 conduct claims as to this issue.
6 All of the Prosecutor's questions to the officer
7 initially were going to -- attempting to go to the Defen-
8 dant's demeanor, which State v. Fisher says is proper.
9 State v. Fisher says that what's improper are questions
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11 that are a direct comment on the Defendant's guilt. That's
12 not what we have here. What we had was questions that were
13 attempting to elicit the Defendant's behavior, and as the
14 officer was answering those questions, she stated that she
15 believed the Defendant was being careful because he was
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17 slow in answering her, and she was talking about his
18 demeanor. Well, the case law says that those type of
19 comments are proper. But what we had was·the defense
20 Counsel completely opened the door with all of the lie
21 questions, and it was Counsel that was drawing the improper
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23 conclusions about, nwell, if a person is guarded, they're
24 therefore guilty." All of that information came in to the
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jury from defense Counsel, not from the Prosecutor. There
2 was nothing from the Prosecutor's questions that were
3 improper or prosecutorial misconduct. All of the error
4
5 here was invited by Counsel. Given that, they shouldn't be
6 given the benefit now of having the appeal reversed and
7 sent back.
8 Now, the issue of the cross examination and
9 impeachment of the appellant, that too, is also proper.
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11 Under Evidence Rule 611, cross examination is okay as to
12 matters that are discussed on direct and issues of credi-
13 bility. Now, there's another Evidence Rule, 613, which
14 talks about if you're going to admit an inconsistent state-
15 ment with nonparty witness~s, you have to confront the
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17 witness with that statement first before you can then bring
18 in that prior inconsistent statement. Although party
19 admissions are exempt under that rule, certainly if it's
20 proper to confront a witness with an inconsistent statement
21 if they're a nonparty, it certainly would also be proper to
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23 confront a party witness with that statement. The
24 Prosecutor here was confronting the Defendant with an in-
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consistent statement. He had testified that he had never
2 hugged and kissed the Defendant -- or, excuse me, the
3 victim, but, yet, he had told his boss that, yes, he had
4
5 previously given her a hug and a kiss.
6 Now, there's a lot of discussion about whether or
7 not that's on a collateral issue or not. Certainly it's
8 for impeachment, but it's also a party admission. Because
9 it is a prior statement that he made, it is admissible for
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11 substantive evidence. It's not to It's not on a col-
12 lateral issue; it's something that the jury can consider as
13 substantive evidence. Now, the Defendant had denied on the
14 stand that he ever kissed and hugged the victim, but he
15 told Ms. Hutchins that, yes, he previously had. Now, the
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17 jury could take that information as he had admitted the
18 crime to Ms. Hutchins earlier in an effort to try to
19 deflect the attention from the assault to this prior
20 consensual lunch that they had, because the victim herself
21 had denied that absolutely no hug and kiss had ever
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23 occurred until the day of the assault. She said that as
24 part of the assault a kiss occurred, but she denied that
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there was any sort of hug and kiss at any point in time
2 prior, so given that, I think it certainly is not a
3 collateral issue, it is something that is substantive
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5 evidence; it is a party admission and can be admissible for
6 that purpose. So, again, I don't think there is anything
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that the Prosecutor's cross examination of the Defendant
was improper (sic).
Defense (skip in recording) argument I don't
think went into so much of a prior bad act, I think she did
address it in her brief, and that, too, again, goes to the
same issue, that we're not dealing with a prior bad act
that is trying to be admitted for propensity purposes, but,
again, it was something that was being admitted for the
prior in (sic) -- prior admission that he had made, and
then also the inconsistent statement during his testimony.
(skip in recording) Counsel also had gone into,
separately from the prosecutorial misconduct claims,
separate claims for an improper opinion, as well as that
the Court had erred in the rebuttal, and I'm going to defer
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to my brief on those issues. I don't know if the Court had
particular questions for me in my response?
THE COURT: Hmmm. Why couldn't the Prosecutor have
let the lie issue alone?
MS. WHITE: And I think the Prosecutor certainly
could've left the lie issue alone, could've left it to
defense Counsel and everything that defense Counsel went
into. I think what the Prosecutor was intending was get to
what was it about the Defendant's demeanor that led the
officer to believe that she was lied to.
Could the Prosecutor's question have been more
direct? Absolutely. Could the Prosecutor had worded it
differently to try to get more of an exact answer?
Certainly so. But I think the officer's response to that
questioning, again, was going to the Defendant's demeanor .
Everything about the lie and the, I guess, conclusions that
were drawn about people being guarded always being guilty
were from defense Counsel and his leading questions. But
the Prosecutor certainly could've walked away and left it
alone, but I think the case of State v. Ramos states that
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defense Counsel opened the door by defense Counsel going
into all of the questioning of the lie, even if the
Prosecutor was improper in going into further explanation
as to why the officer believed she was being lied to, State
v. Ramos would state that that's not improper for reversal.
THE COURT: And was that the issue of credibility or
lying (skip in recording) I don't ... What was, what was it
that the defense lawyer was talking about in Ramos?
MS. WHITE: And that I'm not, I'm not sure of, Your
Honor.
THE COURT: Okay.
MS. WHITE: I'm not sure of the full facts of that
case.
THE COURT: Regarding the comment on the Defendant's
presence at trial?
MS. WHITE: And that, Your Honor, I don't think is an
issue in this case. The case that Counsel cites in her
brief as to being analogous to this situation is a
Prosecutor who directly was commenting on the defendant's
presence in a courtroom and questioning the defendant while
24 Jo L. Jackson, Transcriptionist
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he was on the stand about how upset he got when the
2 Prosecutor was blocking his view of the victim while the
3 victim testified. What we have here is the wit (sic)
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5 the Prosecutor discussing with the jury time and time again
6 that the jury are the sole judges of credibility in this
7 case, that they and they alone, decide credibility. The
8 Prosecutor went through WPIC 1.02 with the jury, went
9 through and explained the things that they can consider
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11 when they're judging credibility, which has to do with bias
12 and motive and all of that. So when the Prosecutor is
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discussing the victim's demeanor, she is also discussing
what motive it is that the victim would have to come into
the courtroom and give the story that she was giving on the
wit"ness stand, and to consider what she was stating on the
witness stand in the context of her full physical demeanor
and whether or not that proved that she was credible or
not, not whether or not the Defendant had a right to
confront her (skip in.recording)
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THE COURT: (skip in recording) agree, however, that
2 that could've been said without a reference to the
3 Defendant sitting there.
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5 MS. WHITE: And I don't think there was any reference
6 to, to the Defendant sitting there, other than, uYou saw
7 how difficult it was for her to come into this courtroom.u
8 THE COURT: Okay. Let me ...
9 MS. WHITE: But my recollection was that it wasn't
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11 something that was stating specifically him being there and
12 his right to confront her, but more about how difficult it
13 was for her to come into the courtroom with him to tell the
14 jury what had happened.
15 THE COURT: Hmmm.
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17 MS. WHITE: But, again, even, even if, if that did
18 occur, Your Honor, and I'm sorry, my recollection, I just
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can't remember the exact words that were used, I don't
think Counsel can meet the high burden here because, again,
they did not object at trial. Given that, the higher
burden is that they have to prove that no curative instruc-
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tion could've corrected any prejudice that occurred, and
2 that hasn't been demonstrated.
3 THE COURT: Thank you.
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5 MS. WHITE: Thank you.
6 THE COURT: Ms. Beall, your rebuttal?
7 MS. BEALL: Yes, thank you, Your Honor.
8 I, I think it's important on the statements
9 regarding the officer's comments on the Defendant's credi-
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11 bility to look at it and how it comes out, and first it's
12 on direct from the Prosecutor, and it's a statement that he
13 was careful, that he appeared to be making it up as he was
14 stating it. Her specific answers are in response to the
15 Prosecutor's questions, "Why did you think he was being
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17 careful?" "Because he was slow to answer, as if he were
18 trying to come up with a story in his head. If this is --
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If something had happened, you'd be able to (skip in
recording) but here you would just say what happened,
nothing to hide." And, again, "Did you get that perception
from him here?" "Yes, he seemed like he had something to
hide." So defense Counsel, again, tries, on his cross, to
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narrow that to the discussion about investigation of other
women or his interactions with other women and not that
that was related to the occurrence of October 27~. But,
then, Prosecutor then, on re-direct, asked the officer
about the relationships, whether going on the property, and
then he says, nwas he also guarded with you on the events
that occurred on October 27th," and the answer is, nYes, he
was," and that's when she blurts out, nAnd he lied to me,
also." And, so, again, the defense Counsel, then, on his
re-cross, attempts to narrow that again to what exactly he
had lied about and tries to focus it away from the fact
that -- or from the implication that he may have lied about
everything, and that he, in the officer's opinion, lied
about what time he spoke to his supervisor about the
incident, and that was a tactic from the defense Counsel
that, again, the strategy of that could be debated,
certainly. But, then, on the Prosecutor's again ques-
tioning of the officer, she again asks the statement, nwhy
did you believe that he was lying to you," and she's
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allowed to ask that question over defense Counsel's
2 objections at that point.
3 With regard to the questioning of the Defendant
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5 and his -- whether or not he hugged and kissed Ms.
6 Fitzpatrick, the City's arguments, I believe, weighs in
7 favor of our arguments here. The City's arguing that 'it
8 was substantive evidence. Well, if it's substantive
9 evidence, then it should've come in in their case in chief,
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11 and it was directly related to October 27th, but the City at
12 the same time is arguing, "Well, it wasn't about October
13 27th, it was about the time that they went to lunch, and
14 defense Counsel knew that because they had that in
15 discovery," and if it's about when they went to lunch,
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17 then, again, our position would be that is a collateral
18 issue. It's not, "Did you kiss and hug Kelly Fitzpatrick?"
19 It was, "Did
20 hugged Kelly
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you tell Theresa Hutchins that you kissed
Fitzpatrick?" And what he may or may
individual is a collateral issue
introduced by the City under the
but was not really impeachment;
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and,
guise
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attempt to insinuate that he made an admission that he
2 kissed and hugged Kelly Fitzpatrick, but no admission was,
3 in fact, made about the incident that occurred on October
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6 Based on the third issue that Your Honor in-
7 quired, I don't have anything else to add on that. I think
8 the record speaks for itself. There ·clearly was a refer-
9 ence to the Defendant being present at the time that Ms.
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11 Fitzpatrick testified, and that argument was made to the
12 jury. Thank you.
13 THE COURT: I did review, on page 271 of the report of
14 proceeding (sic), lines 19 to 22, which reads, in relevant
15 part, nBut, now, Kelly, you saw how difficult it was for
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17 her to testify. You saw how painful it was for her to look
18 at that Defendant. You saw how much she did not want to do
19 that. You saw how uncomfortable she was to be in this
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environment." So that, I think, probably needs to be con-
sidered in the, in the entire deliberation, Ms. Larson
White, so there was actually, if I read this transcript
correctly, a reference to looking at the Defendant.
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In my opinion, the police do have a certain
2 (unintelligible) of credibility, and, in my opinion, in a
3 case like this where there is no physical evidence or other
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6 made by either party, it is important to give a fair weight
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that, and the fact that there was no other evidence, this
Court would be concerned with the Prosecutor's question
about why the officer felt the Defendant was lying. I do
have to consider, as the City has suggested, that the
defense Counsel, instead of leaving the issue alone,
brought the issue up several times, but then the Prosecutor
could've left it alone after that, as well, and they
didn't, so I do believe that in the unique circumstances of
this case, with the emphasis on the lying and so forth,
that this caused a problem for the fairness of the trial.
With respect to the question of the Prosecutor
regarding the hugging and the kissing, I cannot conclude
that that was a collateral issue, and I think that those
questions were proper.
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With respect to the comment on the Defendant's
2 being present and, as I read at the beginning of my deci-
3 sion, the emphasis on the Defendant's being present in
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5 Court I think was something that was problematic.
6 Certainly the Defendant had a right to be in Court, and
7 while the State or the prosecution could have talked about
8 the issues of discomfort, it was unfortunate, I think, that
9 they mentioned the fact that the complaining witness was
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11 required to be there to actually look at that Defendant in
12 this way. So the content and the context were very, very
13 unfortunate.
14 Given, then, the combination of things, I do
15 believe that a remand is appropriate. I think that the
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18 police comment on his credibility. I think that the Defen-
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dant is entitled to a trial where there is to be no comment
on his being present at the trial, which he has a right to
be. Independently these things probably would not have
caused any kind of remand, but the combination of things
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suggests to this Court that the appeal is well-taken and
2 I'm ordering a remand and a retrial.
3 MS. BEALL: Okay.
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5 THE COURT: Is your practice to have an order on
6 criminal motion, or do you want to prepare some document
7 for the Courts {sic) later?
8 MS. BEALL: I have an order that I've partially
9 prepared. I leave it blank as the Court's reasoning so
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11 that I can hear what the Court has to say
12 THE COURT: Alright. Why don't the two of you work on
13 that, and then would you let me know when they're ready?
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UNIDENTIFIED MALE: I will.
THE COURT: Thank you.
MS. BEALL: Thank you, Your Honor.
{END OF HEARING- 2:12:56 p.m.)
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CERTIFICATE
STATE OF WASHINGTON ss.
County of Douglas
I, Jo L. Jackson, do hereby certify:
That I was requested to provide the foregoing
transcript of digitally-recorded proceedings;
That the foregoing transcript consisting of thirty-
three {33) pages is a true and correct transcript of all
such recorded testimony adduced and proceedings had and
of the whole thereof to the best of my ability;
IN WITNESS' WHEREOF, I have hereunto set my hand and
affixed my official seal this 5th day of July 2013.
@COPY JO L. JACKSON
Jo L. Jackson, Transcriptionist P. 0. Box914
Waterville, WA 98858 509-754-9507/509-630-1705
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APPENDIXG
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION I
CITY OF KENT,
Appellant,
v.
EVERARDO BECERRA-AREVALO,
Respondent.
) ) ) ) ) ) ) ) ) ) ) )
No. 69401-4-1
MANDATE
King County
Superior Court No. 12-1-01212-B.KNT
Court Action Required
THE STATE OF WASHINGTON TO: The Superior Court of the State of Washington in and for King
County.
This is to certify that the opinion of the Court of Appeals of the State of Washington, Division
I, filed on April 28, 2014, became the decision terminating review of this court in the above entitled
case on May 30, 2014. This case is mandated to the Superior Court from which the appeal was
taken for further proceedings in accordance with the attached true copy of the opinion.
c: Elaine Winters Tanimy Larson-White Hon. Leroy McCullough
Court Action Required: The sentencing court or criminal presiding judge is to place this matter on the next available motion calendar for action consistent with the opinion.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said ourt at Seattle, this 30th day of May,
4.
ICHA Court Ad rator/Cierk of the Court of Appeals, State of Washington, Division I.